Civil Procedure Regalado OCR

R E M E D I A L LAW
GENERAL PRINCIPLES
1. Classification of courts in the Philippines:

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

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

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

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

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

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

courts a n d t h e juvenile a n d domestic relations courts have
been abolished. With respect to t h e latter, domestic cases
are now generally h a n d l e d by t h e newly created Family
Courts, hereinafter discussed. Other subjects of
controversies r e q u i r i n g special t r a i n i n g a n d knowledge,
such as t a x a t i o n , labor a n d s e c u r i t i e s , a r e h a n d l e d by
quasi-judicial agencies, subject to t h e power of judicial
review by t h e a p p e l l a t e c o u r t s .
7. Jurisdiction and venue are distinguished as

follows:
a. Jurisdiction is the authority to hear and
d e t e r m i n e a case; v e n u e is t h e place w h e r e t h e case is to
be h e a r d or t r i e d .
b. J u r i s d i c t i o n is a m a t t e r of s u b s t a n t i v e law; v e n u e ,
of p r o c e d u r a l law.
c. J u r i s d i c t i o n e s t a b l i s h e s a r e l a t i o n b e t w e e n t h e
court a n d t h e s u b j e c t - m a t t e r ; v e n u e , a r e l a t i o n b e t w e e n
plaintiff a n d d e f e n d a n t , o r p e t i t i o n e r and r e s p o n d e n t .
d. J u r i s d i c t i o n is fixed by law a n d c a n n o t be
conferred by t h e p a r t i e s ; v e n u e may be conferred by t h e
act or a g r e e m e n t of t h e p a r t i e s (Manila Railroad Co. vs.
Attorney-General, 20 Phil. 523).
In c r i m i n a l cases, t h e v e n u e of t h e crime goes into
the t e r r i t o r i a l j u r i s d i c t i o n of t h e court (Lopez vs. Paras,
L-25795, Oct. 29, 1966), hence w h e r e the c r i m i n a l action
is i n s t i t u t e d not in t h e place specified by t h e Rules a n d
declared by t h e s u b s t a n t i v e law as w i t h i n t h e t e r r i t o r i a l
jurisdiction of t h e t r i a l court, t h e motion to q u a s h should
be g r o u n d e d on lack of j u r i s d i c t i o n , a n d not i m p r o p e r
venue.
8. T h e a u t h o r i t y to decide a case and not t h e decision
r e n d e r e d t h e r e i n i s w h a t m a k e s u p jurisdiction. W h e r e
t h e r e is j u r i s d i c t i o n , t h e decision of all q u e s t i o n s a r i s i n g
in t h e case is b u t an exercise of jurisdiction (De la Cruz
7
vs. Moir, 36 Phil. 213; Associated Labor Union vs.

Ramolete, L-23527, Mar. 31, 1965). Consequently, a
court may have jurisdiction over t h e case b u t at t h e
same time act in excess of such jurisdiction.
9. The e r r o r s which a c o u r t may c o m m i t in t h e
exercise of jurisdiction differ from e r r o r s of j u d g m e n t .
T h e f o r m e r is r e v i e w a b l e in an o r i g i n a l a c t i o n for
c e r t i o r a r i , while t h e l a t t e r i s c o r r e c t i b l e b y a p p e a l
(Henderson, et al. vs. Tan, etc., et al., 87 Phil. 466;
Maritime Co. of the Phil. vs. Paredes, L-24811, Mar. 3,
1967; Bulan vs. Masakayan, L-24428, June 26, 1968;
Palma vs. Q & S, Inc., L-20366, May 19, 1986). E r r o r s
of j u r i s d i c t i o n r e n d e r a j u d g m e n t void or, at l e a s t
voidable (see Sec. l[a] and [b], Rule 16; Rule 65), while
e r r o r s of j u d g m e n t are grounds for reversal only if it is
shown t h a t prejudice has been caused thereby (Banco
Espahol-Filipino vs. Palanca, 37 Phil. 821; Bimeda vs.
Perez, et al., 93 Phil. 636).
10. Requisites for t h e exercise of jurisdiction and

how the court acquires such jurisdiction:
a. Jurisdiction over the plaintiff or petitioner: This
is acquired by t h e filing of t h e complaint, p e t i t i o n or
initiatory pleading before t h e court by t h e plaintiff or
petitioner.
b. Jurisdiction over the defendant or respondent:
This is acquired by the voluntary a p p e a r a n c e or
submission by the defendant or r e s p o n d e n t to the
c o u r t or by coercive p r o c e s s i s s u e d by t h e c o u r t to
him, generally by the service of s u m m o n s (Sharuff vs.
Bubla, L-17029, Sept. 30, 1964; Aban vs. Enage,
L-30666, Feb. 25, 1983).
c. Jurisdiction over the subject-matter: This is con-
ferred by law and, unlike jurisdiction over t h e p a r t i e s ,
cannot be conferred on t h e court by t h e v o l u n t a r y act or
a g r e e m e n t of t h e p a r t i e s .
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GENERAL PRINCIPLES
d. Jurisdiction over the issues of the case: This is

d e t e r m i n e d a n d conferred by t h e p l e a d i n g s filed in t h e
case by t h e p a r t i e s , or by t h e i r a g r e e m e n t in a p r e - t r i a l
order or stipulation, or, at t i m e s , by t h e i r implied consent
as by t h e failure of a p a r t y to object to evidence on an
issue not covered by t h e p l e a d i n g s , as provided in Sec. 5,
Rule 10 (see Lazo, et al. vs. Republic Surety & Insurance
Co., Inc., L-27365, Jan. 30, 1970).
e. Jurisdiction over the res (or t h e p r o p e r t y or t h i n g
which is t h e subject of t h e litigation): This is acquired
by the a c t u a l or c o n s t r u c t i v e s e i z u r e by t h e court of t h e
thing in q u e s t i o n , t h u s placing it in custodia legis, as in
a t t a c h m e n t or g a r n i s h m e n t ; or by provision of law
which recognizes in t h e c o u r t t h e power to deal w i t h t h e
p r o p e r t y o r s u b j e c t - m a t t e r w i t h i n its t e r r i t o r i a l j u r i s -
diction, a s i n l a n d r e g i s t r a t i o n p r o c e e d i n g s o r s u i t s
involving civil s t a t u s or r e a l p r o p e r t y in t h e P h i l i p p i n e s
of a n o n r e s i d e n t d e f e n d a n t .
In two i n s t a n c e s , t h e c o u r t a c q u i r e s jurisdiction to
try t h e case, even if it h a s not a c q u i r e d jurisdiction over
the p e r s o n of a n o n r e s i d e n t d e f e n d a n t , as long as it h a s
jurisdiction over t h e res, as w h e n t h e action involves t h e
p e r s o n a l s t a t u s of t h e plaintiff or p r o p e r t y in t h e Phil-
ippines in w h i c h t h e d e f e n d a n t claims an i n t e r e s t (see
Sec. 15, Rule 14). In s u c h cases, t h e service of s u m m o n s
by p u b l i c a t i o n a n d notice to t h e d e f e n d a n t is m e r e l y
t o c o m p l y w i t h d u e p r o c e s s r e q u i r e m e n t s (Banco
Espanol-Filipino vs. Palanca, 37 Phil. 921; De Midgely
vs. Ferandos, et al., L-34314, May 13, 1975). Under
Sec. 133 of t h e C o r p o r a t i o n C o d e , w h i l e a f o r e i g n
corporation doing b u s i n e s s in t h e P h i l i p p i n e s w i t h o u t a
license c a n n o t sue or i n t e r v e n e in any action here, it may
be sued or p r o c e e d e d a g a i n s t before our c o u r t s or
administrative tribunals.
1 1 . As a g e n e r a l proposition, t h e jurisdiction of t h e
court is d e t e r m i n e d by t h e s t a t u t e in force at t h e t i m e of
t h e c o m m e n c e m e n t of t h e action (People vs. Paderna,
9
L-28518, Jan. 29, 1968; People vs. Mariano, et al.,

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

P978, b u t t h e o t h e r claims for d a m a g e s a n d a t t o r n e y ' s
10
GENERAL PRINCIPLES
fees bring t h e t o t a l relief s o u g h t to more t h a n P 10,000

(which was t h e n t h e j u r i s d i c t i o n a l limit for civil cases in
the inferior courts), t h e t o t a l i t y of said claims p u t s t h e
case w i t h i n t h e j u r i s d i c t i o n of t h e t h e n C o u r t of F i r s t
Instance and the trial court erred in dismissing the
complaint upon its m e r e impression t h a t t h e o t h e r claims
were "bloated" for t h e p u r p o s e of invoking its jurisdiction,
w i t h o u t h e a r i n g a n d p r o o f of s u c h fact (Enerio vs.
Alampay, L-40010, May 26, 1975; Ratila vs. Tapucar,
L-45018, Jan. 24, 1977). T h i s doctrine is still applicable
subject t o t h e i n c r e a s e d j u r i s d i c t i o n a l a m o u n t u n d e r
B.P. Blg. 129 a n d s u b s e q u e n t legislation.
14. The j u r i s d i c t i o n of a court, w h e t h e r in c r i m i n a l
or civil c a s e s , once it a t t a c h e s c a n n o t be o u s t e d by
s u b s e q u e n t h a p p e n i n g s or e v e n t s a l t h o u g h of a charac-
t e r w h i c h w o u l d h a v e p r e v e n t e d j u r i s d i c t i o n from
a t t a c h i n g in t h e first i n s t a n c e (Ramos, et al. vs. Central
Bank, L-29352, Oct. 4, 1971, a n d c a s e s t h e r e i n cited;
Dioquino vs. Cruz, et al., L-38579, Sept. 9, 1982) a n d it
r e t a i n s j u r i s d i c t i o n u n t i l it finally disposes of t h e case
(Republic vs. Pielago, et al., G.R. No. 72218, July 21,
1986).
15. The c o n s t i t u t i o n a l i t y of a s t a t u t e m u s t be ques-

tioned a t t h e e a r l i e s t o p p o r t u n i t y , except i n c r i m i n a l
cases w h e r e t h e q u e s t i o n may be r a i s e d at any s t a g e and,
in civil c a s e s , if t h e d e t e r m i n a t i o n of t h e q u e s t i o n is
necessary for t h e decision of t h e case, even if r a i s e d for
the first t i m e on a p p e a l . A c o n s t i t u t i o n a l question will
also be considered by t h e a p p e l l a t e court at any t i m e if it
involves t h e j u r i s d i c t i o n of t h e court a quo. The s a m e
rule applies to o r d i n a n c e s (San Miguel Brewery, Inc. vs.
Magno, L 21879, Sept. 9, 1967).
16. Basic in t h e law on procedure is t h e doctrine t h a t
the jurisdiction of a c o u r t over t h e s u b j e c t - m a t t e r of an
action is conferred only by t h e C o n s t i t u t i o n or t h e law
and t h a t t h e Rules of C o u r t yield to s u b s t a n t i v e law, in
11
this case, the Judiciary Act and B.P. Blg. 129, both as
a m e n d e d , a n d of w h i c h j u r i s d i c t i o n is only a p a r t .
J u r i s d i c t i o n c a n n o t be fixed by t h e a g r e e m e n t of t h e
parties; it cannot be acquired t h r o u g h , or waived, en-
l a r g e d or d i m i n i s h e d by, any act or omission of t h e
p a r t i e s ; neither can it be conferred by the acquiescence
of t h e court (De Jesus, et al. vs. Garcia, et al., L-26816,
Feb. 28, 1967; Calimlim, et al. vs. Ramirez, et al.,
L-34363, Nov. 19, 1982). Jurisdiction m u s t exist as a
m a t t e r of law (People vs. Casiano, L-15309, Feb. 16,
1961). Consequently, questions of jurisdiction may be
raised for t h e first time on a p p e a l even if such issue
w a s not r a i s e d in t h e l o w e r c o u r t (Government vs.
American Surety Co., 11 Phil. 203; Vda. de Roxas vs.
Rafferty, 37 Phil. 957; People vs. Que Po Lay, 94 Phil.
640). A court can motu proprio dismiss a case which is
outside its jurisdiction (Sec. 1, Rule 9).
17. N e v e r t h e l e s s , in some c a s e s , t h e p r i n c i p l e of
estoppel by laches h a s been availed of by our a p p e l l a t e
courts to bar a t t a c k s on jurisdiction a n d t h i s principle
h a s been applied to both civil a n d criminal cases, t h u s :
a. In t h e early case of Santiago, et al. vs. Valenzuela
(78 Phil. 397), it was held t h a t if a motion to dismiss t h e
appeal, on t h e ground t h a t said a p p e a l was perfected out
of time, is filed for t h e first time w i t h t h e appellate court
after t h e a p p e l l a n t had paid t h e docket fee and t h e cost
of p r i n t i n g t h e record on appeal, and after the filing of
a p p e l l a n t ' s brief, t h e a p p e l l a t e court should deny t h e
motion as t h e appellee may be considered in estoppel by
his failure to object on time.
This doctrine was subsequently abandoned in
Miranda vs. Guanzon (92 Phil. 168) since t h e "require-
m e n t r e g a r d i n g t h e perfection of an a p p e a l w i t h i n t h e
r e g l e m e n t a r y period is not only m a n d a t o r y b u t j u r i s -
dictional," a ruling subsequently r e i t e r a t e d in Garganta
vs. CA (105 Phil. 412), Valdez vs. Ocumen (106 Phil.
12
GENERAL PRINCIPLES
929), Galima vs. CA (L-21046, J a n . 3 1 , 1966), Antique

Sawmills, Inc. vs. Zayco (L-20051, May 30, 1966), Roque
vs. Vdo. de Del Rosario (L-24873, Sept. 23, 1966) and
Arellano, et al. vs. CA, et al. (L-31856, Nov. 24, 1972).
b. In t h e l a t e r case, however, of Tijam vs. Sibong-
hanoy, et al. (L-21450, April 15, 1968), t h e co-defendant
surety c o m p a n y n e v e r r a i s e d t h e issue of j u r i s d i c t i o n in
the Court of F i r s t I n s t a n c e d e s p i t e s e v e r a l o p p o r t u n i t i e s
to do so a n d , a l t h o u g h t h e claim being for only 1*1,908,
the case w a s w i t h i n t h e exclusive original jurisdiction
of the m u n i c i p a l court. It w a s only after t h e court of
Appeals h a d affirmed t h e decision of t h e t r i a l court in
favor o f t h e p l a i n t i f f b u t b e f o r e t h e f i n a l i t y o f t h i s
decision of t h e C o u r t of A p p e a l s t h a t t h e co-defendant
surety c o m p a n y filed its motion to d i s m i s s on t h e ground
of lack of o r i g i n a l j u r i s d i c t i o n of t h e t r i a l court. Denying
said m o t i o n , t h e S u p r e m e C o u r t s t a t e d : "Were w e t o
sanction s u c h c o n d u c t on its p a r t , we would in effect be
declaring as useless all t h e proceedings had in t h e p r e s e n t
case since it w a s commenced on J u l y 19, 1948 a n d compel
the j u d g m e n t c r e d i t o r s to go up t h e i r Calvary once more.
The inequity a n d u n f a i r n e s s of t h i s is not only p a t e n t
but revolting." I t f u r t h e r s t a t e d t h a t "after v o l u n t a r i l y
s u b m i t t i n g a c a u s e a n d e n c o u n t e r i n g an a d v e r s e decision
on t h e m e r i t s , it is too l a t e for t h e loser to q u e s t i o n t h e
jurisdiction or p o w e r of t h e court . . . it is not r i g h t for
a p a r t y who h a s affirmed a n d invoked t h e jurisdiction
of a court in a p a r t i c u l a r m a t t e r to s e c u r e an affirmative
relief, t o a f t e r w a r d s d e n y t h a t s a m e j u r i s d i c t i o n t o
escape a p e n a l t y , " citing Pindangan, etc. vs. Dans, et al.
(L-14591, S e p t . 26, 1962), Young Men's Labor Union,
etc. vs. CIR, et al. (L-20307, Feb. 26, 1965) a n d Mejia
vs. Lucas (100 Phil. 277). See also Capilitan vs. De la
Cruz, (L-29536-37, F e b . 28, 1974), Summit Guaranty vs.
CA, et al. (G.R. No. 51139, Dec. 14, 1981), Tajonera, et
al. vs. Lumaroza, et al. (L-48907 & L-49035, Dec. 19,
1981), Nieva vs. Manila Banking Corp. (L-30811,
13
Sept. 2, 1983), Florendo, et al. vs. Coloma, et al. (G.R.

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

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

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

et al., L-33850, Jan. 22, 1976; Santos vs. Banayo,
L-31854, Sept. 9, 1982). P a r e n t h e t i c a l l y , S e c . 2 of
P.D. 1529 h a s e l i m i n a t e d t h e d i s t i n c t i o n b e t w e e n t h e
general jurisdiction of a Regional T r i a l C o u r t a n d t h e
limited jurisdiction conferred upon it by t h e former law
when acting as a c a d a s t r a l c o u r t (Ligon vs. CA, et al.,
G.R. No. 107751, June 1, 1995). However, t h e holding
t h a t such s i t u a t i o n s p r e s e n t only p r o c e d u r a l , a n d not
jurisdictional, q u e s t i o n s still a p p l i e s .
20. Q u e s t i o n s involving o w n e r s h i p of or title to real

property should be l i t i g a t e d in an o r d i n a r y civil action
or in t h e proceeding w h e r e t h e i n c i d e n t properly belongs,
before a court of g e n e r a l j u r i s d i c t i o n a n d not before a
land r e g i s t r a t i o n c o u r t (Santos vs. Aquino, L-32949,
Nov. 28, 1980).
2 1 . Statutes regulating the procedure of the courts

will be c o n s t r u e d as applicable to actions p e n d i n g a n d
u n d e t e r m i n e d at t h e t i m e of t h e i r p a s s a g e , b u t not to
actions which h a v e a l r e a d y become final a n d executory
(Borre, et al. vs. CA, et al., G.R. No. 57204, Mar. 14,
1988). P r o c e d u r a l laws a r e r e t r o s p e c t i v e in t h a t sense
and to t h a t e x t e n t (People vs. Sumilang, 77 Phil. 764;
Liam Law vs. Olympic Sawmill Co., et al., L-30771,
May 26, 1984; Yakult Philippines, et al. vs. CA, et al.,
G.R. No. 91856, Oct. 5, 1990). T h u s , t h e provision of
B.P. Blg. 129 which e l i m i n a t e d t h e need for a record on
appeal was given retroactive effect to authorize the giving
o f due c o u r s e t o a n a p p e a l , w h i c h s h o u l d h a v e b e e n
perfected in 1982 w i t h t h e r e q u i r e d record on appeal, by
relieving t h e a p p e l l a n t of t h e need therefor in line w i t h
the change of p r o c e d u r e u n d e r B.P. Blg. 129 (Alday vs.
Camilon, G.R. No. 60316, Jan. 31, 1983; Ouano vs. CA,
et al., L-44823, June 27, 1985; De Guzman, et al. vs.
CA, et al, G.R. No. 52733, July 23, 1985; Lagunzad vs.
CA, et al, G.R. No. 52007, Sept. 24, 1987; Mun. Gov't of
17
Coron vs. Carino, et al., G.R. No. 65896, Sept. 24, 1987;
Sarmiento vs. Gatmaitan, et al., L-38173, Nov. 12, 1987).
However, new court rules apply to p e n d i n g cases
only with reference to proceedings t h e r e i n which t a k e
place after t h e d a t e of t h e i r effectivity. They do not
apply to the extent t h a t in t h e opinion of t h e court t h e i r
application would not be feasible or would work injustice,
in which event the former procedure shall apply. T h u s ,
where t h e application of the Rule on S u m m a r y Procedure
will m e a n t h e dismissal of the appeal of t h e p a r t y , t h e
s a m e should not apply since, after all, t h e p r o c e d u r e
t h e y a v a i l e d of w a s also allowed u n d e r t h e R u l e s of
Court (Laguio, et al. vs. Garnet, et al., G.R. No. 74903,
Mar. 21, 1980).
22. S u b s t a n t i v e law is t h a t p a r t of t h e law which
c r e a t e s r i g h t s concerning life, liberty or property, or t h e
p o w e r s of i n s t r u m e n t a l i t i e s for t h e a d m i n i s t r a t i o n of
p u b l i c affairs (Primicias vs. Ocampo, 81 Phil. 650).
Procedural law refers to the adjective laws which prescribe
rules a n d forms of procedure in order t h a t courts may be
able to a d m i n i s t e r justice (Lopez vs. Gloria, 40 Phil. 33).
S u b s t a n t i v e law c r e a t e s , defines a n d r e g u l a t e s r i g h t s ,
as opposed to "adjective or remedial law" which prescribes
t h e method of enforcing t h e r i g h t s or obtaining r e d r e s s
for t h e i r i n v a s i o n (Black's Law Dictionary, 6th Ed.,
p. 1429; citations omitted).
Procedure is t h e mode of proceeding by which a legal
r i g h t is enforced, as d i s t i n g u i s h e d from t h e law which
gives or defines t h e right, a n d which, by m e a n s of t h e
proceeding, t h e court is to a d m i n i s t e r . This t e r m is com-
monly opposed to t h e s u m of legal principles c o n s t i t u t i n g
t h e s u b s t a n c e of t h e law, and denotes t h e body of rules,
w h e t h e r of practice or pleading, whereby rights are
effectuated t h r o u g h t h e successful a p p l i c a t i o n of t h e
proper remedies (op. cit., pp. 1367-1368; id.).
®
GENERAL PRINCIPLES
In d e t e r m i n i n g w h e t h e r a r u l e p r e s c r i b e d by t h e
S u p r e m e C o u r t abridges, e n l a r g e s or modifies any
substantive right, the test is whether the rule really
r e g u l a t e s p r o c e d u r e , t h a t is, t h e judicial process for
enforcing rights and duties recognized by the substantive
law a n d for j u s t l y a d m i n i s t e r i n g r e m e d y a n d r e d r e s s for
a d i s r e g a r d or infraction of t h e m . If t h e r u l e t a k e s a w a y
a vested r i g h t , it is not p r o c e d u r a l . If t h e r u l e c r e a t e s a
right, s u c h as t h e r i g h t to a p p e a l , it may be classified as
a s u b s t a n t i v e m a t t e r ; b u t if it operates as a means of
implementing an existing right, then the rule deals
merely with procedure (Fabian vs. Desierto, etc., et al.,
G.R. No. 129742, Sept. 16, 1998).
It is, t h e r e f o r e , t h e n a t u r e a n d t h e p u r p o s e of t h e
law w h i c h d e t e r m i n e s w h e t h e r i t i s s u b s t a n t i v e o r
procedural, a n d not its place in t h e s t a t u t e or its inclusion
in a code. T h u s , for i n s t a n c e , A r t s . 539 and 1674 of t h e
Civil Code a n d Sec. 85, R.A. 296 provided injunctive r u l e s
i n e j e c t m e n t cases i n t h e t r i a l a n d a p p e l l a t e s t a g e s , b u t
these have b e e n properly incorporated with modifications
as Secs. 8 a n d 9, r e s p e c t i v e l y , of Rule 70 of t h e 1964
Rules of C o u r t (now, Sec. 15 of revised Rule 70). T h e s e
s u b s e q u e n t a m e n d a t o r y provisions on injunctions were
proper since t h e m e r e fact t h a t those provisions on in-
junctions w e r e formerly included in a s u b s t a n t i v e s t a t u t e
or code does not c o n v e r t t h e m into or d e t r a c t from t h e
fact t h a t t h e y a r e p r o c e d u r a l laws, c o n t r a r y t o common
m i s i m p r e s s i o n . I n fact, t h e r e a r e m a n y such p r o c e d u r a l
rules found in t h e Civil Code or, for t h a t m a t t e r , in o t h e r
codes o r b a s i c a l l y s u b s t a n t i v e l a w s b u t t h e y d o n o t
t h e r e b y lose t h e i r c h a r a c t e r a s p r o c e d u r a l laws.
T h i s m a t t e r is being clarified a n d e m p h a s i z e d h e r e
in view of t h e C o n s t i t u t i o n a l provision t h a t t h e r u l e s
which t h e S u p r e m e C o u r t is a u t h o r i z e d to p r o m u l g a t e
shall not d i m i n i s h , i n c r e a s e or modify s u b s t a n t i v e r i g h t s
(Sec. 5 [5], Art. VIII, 1987 Constitution). The improbable
position t h a t a clearly p r o c e d u r a l provision becomes a
19
s u b s t a n t i v e law by the mere fact t h a t it is included in a

c o m p i l a t i o n , codification o r s t a t u t o r y e n a c t m e n t o f
s u b s t a n t i v e r i g h t s , a l t h o u g h only to i n d i c a t e t h e
r e m e d i a l c o m p l e m e n t for t h e e n f o r c e m e n t t h e re o f ,
would effectively s u b v e r t the Constitutional i n t e n t and
d i m i n i s h t h e scope and e x t e n t of t h e r u l e - m a k i n g
power of t h e S u p r e m e Court.
20
I. CIVIL P R O C E D U R E
A. PRELIMINARY CONSIDERATIONS
1. The s t u d y of civil p r o c e d u r e includes o r d i n a r y

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

not affect t h e cause of action. There may be several
rights of action and one cause of action, a n d r i g h t s may
accrue at different times from the same cause (1 Am JUT 2d,
Sec. 2, p. 541).
c. Relief: The redress, protection, a w a r d or coercive
m e a s u r e which t h e plaintiff p r a y s t h e court to r e n d e r in
his favor as a consequence of t h e delict committed by t h e
defendant.
d. Remedy: The procedure or type of action which
may be availed of by t h e plaintiff as t h e m e a n s to obtain
t h e relief desired.
e. Subject-matter: The t h i n g , wrongful act, con-
t r a c t or property which is directly involved in t h e action,
c o n c e r n i n g which t h e w r o n g h a s b e e n done a n d w i t h
respect to which t h e controversy h a s a r i s e n (Yusingco,
et al. vs. Ong Ring Lian, L-26523, Dec. 24, 1971).
T h u s , in a case for breach of contract, t h e contract
violated is t h e subject-matter; t h e breach by t h e obligor
is t h e cause of action; the right of action is t h e consequent
s u b s t a n t i v e r i g h t on t h e p a r t jof t h e obligee to sue for
r e d r e s s ; t h e relief is t h e d a m a g e s or rescission or t h e act
which the plaintiff asks the court to order; and t h e remedy
is t h e t y p e of action which m a y be a v a i l e d of by t h e
plaintiff, which may be an action e i t h e r for d a m a g e s ,
for rescission or for specific performance.
The s u b j e c t - m a t t e r of a given case is d e t e r m i n e d not
by t h e n a t u r e of t h e action t h a t a p a r t y is e n t i t l e d to
bring b u t by t h e n a t u r e a n d c h a r a c t e r of t h e p l e a d i n g s
a n d issues s u b m i t t e d by t h e p a r t i e s (Viray vs. CA, et al.,
G.R. No. 92481, Nov. 9, 1990).
3. Classification of actions:
a. Real action: One b r o u g h t for t h e protection of
r e a l r i g h t s , land, t e n e m e n t s or h e r e d i t a m e n t s or one
founded on privity of e s t a t e only (Paper Industries Corp.
22
PRELIMINARY CONSIDERATIONS
of the Phil. vs. Samson, et al., L-80175, Nov. 28, 1975).

Example: Accion reivindicatoria.
Personal action: O n e which is not founded upon t h e
privity of real r i g h t s or r e a l p r o p e r t y . Example: Action
for a s u m of money.
Mixed action: O n e b r o u g h t for protection or recovery
of r e a l p r o p e r t y a n d a l s o for an a w a r d for d a m a g e s
sustained. Example: Accion publiciana w i t h a claim for
damages.
For p u r p o s e s of v e n u e , a mixed action is governed
by t h e r u l e s of v e n u e in r e a l actions.
b. Action in rem: O n e which is not directed only
a g a i n s t p a r t i c u l a r p e r s o n s b u t a g a i n s t t h e t h i n g itself
and t h e object of which is to b a r indifferently all who
might b e m i n d e d t o m a k e a n y objection a g a i n s t t h e r i g h t
sought t o b e enforced, h e n c e t h e j u d g m e n t t h e r e i n i s
binding theoretically upon t h e whole world. Example:
Expropriation.
Action in personam: O n e which is directed a g a i n s t
p a r t i c u l a r p e r s o n s on t h e b a s i s of t h e i r p e r s o n a l liability
to establish a claim against t h e m and the j u d g m e n t
wherein is b i n d i n g only upon t h e p a r t i e s impleaded or
their successors in i n t e r e s t . Example: Action for b r e a c h
of contract.
Action quasi in rem: O n e directed a g a i n s t p a r t i c u l a r
persons b u t t h e p u r p o s e of which is to b a r a n d bind not
only said p e r s o n s b u t a n y o t h e r p e r s o n who claims any
interest in the property or right subject of the suit.
Example: J u d i c i a l foreclosure of a m o r t g a g e (Ocampo
vs. Domalanta, L-21011, Aug. 30, 1967).
A proceeding for a t t a c h m e n t of p r o p e r t y is in rem if
t h e d e f e n d a n t does n o t a p p e a r in court, a n d in personam
if he a p p e a r s (Banco EspaAol-Filipino vs. Palanca,
supra).
23
c. Transitory action: One t h e v e n u e of which is

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

to enforce p e r s o n a l r i g h t s or obligations, such action is
brought a g a i n s t t h e person.
X X X
On t h e o t h e r h a n d , a proceeding quasi in rem is one

brought a g a i n s t p e r s o n s seeking to subject t h e property
of such persons to t h e discharge of t h e claims assailed. In
an a c t i o n quasi in rem, an i n d i v i d u a l is n a m e d as
defendant and t h e p u r p o s e of t h e proceeding is to subject
his i n t e r e s t s t h e r e i n to t h e obligations or loans b u r d e n i n g
the property. Actions quasi in rem deal with t h e s t a t u s ,
ownership or liability of a p a r t i c u l a r p r o p e r t y b u t which
are intended to operate on t h e s e questions only as between
particular p a r t i e s to t h e proceedings a n d not to a s c e r t a i n
or cut off t h e r i g h t s or i n t e r e s t s of all possible c l a i m a n t s .
The j u d g m e n t s t h e r e i n a r e binding only upon t h e p a r t i e s
who joined in t h e action.
25
B. J U R I S D I C T I O N OF THE S U P R E M E COURT
U N D E R THE 1987 C O N S T I T U T I O N
Article VI (Legislative D e p a r t m e n t )
"Sec. 30. No law s h a l l be p a s s e d i n c r e a s i n g t h e
appellate jurisdiction of the Supreme Court as
provided i n t h i s C o n s t i t u t i o n w i t h o u t i t s advice a n d
concurrence."
Article VII (Executive D e p a r t m e n t )

"Sec. 4. (last par.) The S u p r e m e Court, s i t t i n g en
banc, shall be t h e sole judge of all contests r e l a t i n g to
t h e election, r e t u r n s a n d qualifications of t h e P r e s i d e n t
or V i c e - P r e s i d e n t , a n d may p r o m u l g a t e r u l e s for t h e
purpose."
X X X
"Sec. 18. ( t h i r d p a r . ) T h e S u p r e m e C o u r t m a y
review, in an a p p r o p r i a t e proceeding filed by any citizen,
t h e sufficiency of t h e factual basis of t h e p r o c l a m a t i o n of
m a r t i a l law or t h e suspension of t h e privilege of t h e w r i t
or the extension thereof, and must promulgate its decision
t h e r e o n w i t h i n t h i r t y days from its filing."
Article VIII (Judicial D e p a r t m e n t )

"Sec. 2. The Congress shall have t h e power to define,
prescribe, a n d apportion t h e jurisdiction of t h e v a r i o u s
c o u r t s b u t may not deprive t h e S u p r e m e C o u r t of its
jurisdiction over cases e n u m e r a t e d in Section 5 hereof.
No law shall be p a s s e d reorganizing t h e J u d i c i a r y
when it u n d e r m i n e s the security of t e n u r e of its
Members."
X X X
"Sec. 5. The S u p r e m e Court shall have t h e following

powers:
26
JURISDICTION OF THE SUPREME COURT
U N D E R T H E 1987 CONSTITUTION
(1) Exercise o r i g i n a l j u r i s d i c t i o n over c a s e s affecting

ambassadors, o t h e r public m i n i s t e r s a n d consuls, a n d
over petitions for certiorari, prohibition, mandamus,
quo warranto, a n d habeas corpus.
(2) Review, revise, r e v e r s e , modify, or affirm on a p p e a l
or certiorari, as t h e law or t h e Rules of C o u r t may
provide, final j u d g m e n t s a n d o r d e r s of lower c o u r t s
in:
(a) All c a s e s i n w h i c h t h e c o n s t i t u t i o n a l i t y o r
validity of a n y t r e a t y , i n t e r n a t i o n a l or exe-
cutive a g r e e m e n t , law, p r e s i d e n t i a l decree,
p r o c l a m a t i o n , o r d e r , i n s t r u c t i o n , o r d i n a n c e , or
r e g u l a t i o n is in q u e s t i o n .
(b) All cases involving t h e legality of any tax, impost,
a s s e s s m e n t , or toll, or a n y p e n a l t y imposed in
relation thereto.
(c) All cases in which t h e j u r i s d i c t i o n of any lower
court is in i s s u e .
(d) All c r i m i n a l cases in which t h e p e n a l t y imposed
is reclusion perpetua or h i g h e r .
(e) All cases in which only an e r r o r or question of
law is involved.
(3) Assign t e m p o r a r i l y j u d g e s of lower courts to o t h e r
stations as public interest may require. Such
t e m p o r a r y a s s i g n m e n t s h a l l not exceed six m o n t h s
w i t h o u t t h e c o n s e n t of t h e j u d g e concerned.
(4) O r d e r a c h a n g e of v e n u e or place of t r i a l to avoid a
m i s c a r r i a g e of j u s t i c e .
(5) P r o m u l g a t e r u l e s c o n c e r n i n g t h e p r o t e c t i o n a n d
enforcement of constitutional rights, pleading,
practice, a n d p r o c e d u r e in all courts, t h e admission
to t h e practice of law, t h e I n t e g r a t e d Bar, a n d legal
a s s i s t a n c e to t h e u n d e r p r i v i l e g e d . Such r u l e s shall
provide a simplified a n d inexpensive procedure for
27
t h e speedy disposition of cases, shall be uniform for

all courts of t h e same grade, and shall not diminish,
i n c r e a s e , or modify s u b s t a n t i v e r i g h t s . R u l e s of
procedure of special courts and quasi-judicial bodies
s h a l l r e m a i n effective u n l e s s d i s a p p r o v e d by t h e
S u p r e m e Court.
(6) Appoint all officials and employees of t h e J u d i c i a r y
in accordance with the Civil Service Law."
Article IX (Constitutional Commissions)

A. Common Provisions
"Sec. 7. Each Commission shall decide by a majority
vote of all its M e m b e r s any case or m a t t e r b r o u g h t before
it w i t h i n sixty days from t h e d a t e of its submission for
decision or r e s o l u t i o n . A c a s e or m a t t e r is d e e m e d
s u b m i t t e d for decision or resolution upon t h e filing of
t h e last pleading, brief, or m e m o r a n d u m r e q u i r e d by
the rules of t h e Commission or by t h e Commission itself.
Unless otherwise provided by this Constitution or by law,
any decision, order or ruling of each Commission may be
b r o u g h t to t h e S u p r e m e C o u r t on certiorari by t h e
a g g r i e v e d p a r t y w i t h i n t h i r t y d a y s from r e c e i p t of a
copy thereof."
NOTES
1. See, in t h i s connection, t h e notes u n d e r Sec. 7,

Rule 56.
2. Considering t h e provisions of B.P. Blg. 129, t h e
fact t h a t a p p e a l s from t h e S e c u r i t i e s a n d E x c h a n g e
Commission and in n a t u r a l i z a t i o n a n d d e n a t u r a l i z a t i o n
cases should now be t a k e n to t h e Court of Appeals, and
all d e c i s i o n s o f t h e c o n s t i t u t i o n a l c o m m i s s i o n s a r e
reviewable on original actions of certiorari, all a p p e a l s
in civil cases to t h e S u p r e m e Court can now be b r o u g h t
only on p e t i t i o n for review on c e r t i o r a r i (cf. Sec. 17,
28
JURISDICTION OF THE SUPREME COURT
U N D E R T H E 1987 CONSTITUTION
R.A. 296, as a m e n d e d by R.A. 5440; Santos, et al. vs.

CA, et al., G.R. No. 56614, July 28, 1987). Moreover, as
hereafter explained, Sec. 9 of B.P. Blg. 129 w a s a m e n d e d
by R.A. 7902 to f u r t h e r v e s t a p p e l l a t e jurisdiction in t h e
Court of Appeals over j u d g m e n t s , final o r d e r s , a w a r d s or
r e s o l u t i o n s o f t h e Civil S e r v i c e C o m m i s s i o n a n d t h e
C e n t r a l Board of A s s e s s m e n t A p p e a l s .
29
C. THE J U D I C I A R Y REORGANIZATION ACT
OF 1 9 8 0
ORGANIZATION
1. The Judiciary Reorganization Act of 1980 (Batas

Pambansa Blg. 129) took effect upon its a p p r o v a l on
August 14, 1981 (Sec. 48). However, the t r a n s i t o r y pro-
v i s i o n (Sec. 44) d e c l a r e d t h a t i t s p r o v i s i o n s " s h a l l
immediately be carried out in accordance with an
Executive Order to be issued by the President. The
Court of Appeals, the Courts of First I n s t a n c e , the
Circuit Criminal Courts, the Juvenile and Domestic
Relations Courts, t h e C o u r t s of A g r a r i a n Relations, t h e
City C o u r t s , t h e Municipal C o u r t s a n d t h e M u n i c i p a l
Circuit C o u r t s shall continue to function as p r e s e n t l y
c o n s t i t u t e d a n d organized u n t i l t h e completion of t h e
reorganization provided in t h i s Act as declared by t h e
P r e s i d e n t . Upon such declaration, t h e said courts shall
be deemed automatically abolished a n d t h e i n c u m b e n t s
thereof shall cease to hold office. The cases p e n d i n g in
the old C o u r t s shall be t r a n s f e r r e d to t h e a p p r o p r i a t e
C o u r t s c o n s t i t u t e d p u r s u a n t to t h i s Act, t o g e t h e r w i t h
t h e p e r t i n e n t functions, records, e q u i p m e n t , p r o p e r t y
and t h e necessary personnel." The constitutionality of
t h i s Act w a s u p h e l d by t h e S u p r e m e C o u r t en banc,
w i t h one dissent, in De la Liana, et al. vs. Alba, et al.
(G.R. No. 57883, M a r . 12, 1982).
2. The Court of Appeals was replaced by the

I n t e r m e d i a t e Appellate Court consisting of a P r e s i d i n g
J u s t i c e a n d 49 Associate Appellate J u s t i c e s , which shall
sit in 10 divisions each composed of 5 m e m b e r s , except
o n l y for t h e p u r p o s e o f e x e r c i s i n g a d m i n i s t r a t i v e ,
ceremonial or o t h e r non-adjudicatory functions in which
i n s t a n c e s it may sit en banc (Secs. 3 a n d 4).
30
JUDICIARY REORGANIZATION ACT OF 1980
However, under Executive Order No. 33 (July 28,1986),

a m e n d i n g B . P . B l g . 129, t h e C o u r t o f A p p e a l s w a s
r e - c r e a t e d , c o n s i s t i n g of a P r e s i d i n g J u s t i c e a n d 50
Associate J u s t i c e s , which shall exercise its powers,
functions and duties t h r o u g h 17 divisions, each composed
of 3 m e m b e r s . It m a y s i t en banc for t h e p u r p o s e of
e x e r c i s i n g a d m i n i s t r a t i v e , c e r e m o n i a l o r o t h e r non-
adjudicatory functions (Secs. 3 a n d 4, as a m e n d e d ) .
A majority of t h e a c t u a l m e m b e r s of t h e C o u r t s h a l l
constitute a q u o r u m for its sessions en banc. T h r e e (3)
m e m b e r s s h a l l c o n s t i t u t e a q u o r u m for t h e sessions of a
division. The u n a n i m o u s vote of t h e t h r e e m e m b e r s of a
division s h a l l be n e c e s s a r y for t h e p r o n o u n c e m e n t of a
decision or final resolution, which s h a l l be r e a c h e d in
c o n s u l t a t i o n before t h e w r i t i n g of t h e opinion by a n y
m e m b e r o f t h e division. I n t h e e v e n t t h a t t h e t h r e e
m e m b e r s do not r e a c h a u n a n i m o u s vote, t h e P r e s i d i n g
Justice s h a l l r e q u e s t t h e Raffle C o m m i t t e e of t h e Court
for t h e d e s i g n a t i o n of t w o a d d i t i o n a l J u s t i c e s to s i t
temporarily w i t h t h e m , forming a special division of five
m e m b e r s a n d t h e c o n c u r r e n c e of a m a j o r i t y of s u c h
division shall be n e c e s s a r y for t h e p r o n o u n c e m e n t of a
decision or final r e s o l u t i o n . T h e d e s i g n a t i o n of s u c h
a d d i t i o n a l J u s t i c e s s h a l l b e m a d e s t r i c t l y b y raffle
(Sec. 11, as a m e n d e d ) .
E x e c u t i v e O r d e r N o . 33 r e p e a l e d Sec. 8 of B . P .
Blg. 129 which h a d provided for grouping of divisions
to h a n d l e specific classes of cases (Sec. 4). It f u r t h e r
provided t h a t t h e t e r m " I n t e r m e d i a t e Appellate Court,
Presiding Appellate Justice and Associate Appellate
Justice(s)" used in B.P. Blg. 129 or in any o t h e r law or
executive order s h a l l h e r e a f t e r m e a n Court of Appeals,
Presiding J u s t i c e a n d Associate Justice(s), respectively
(Sec. 8).
Additionally, effective F e b r u a r y 2, 1997, B.P. Blg. 129
w a s f u r t h e r a m e n d e d by R.A. 8 2 4 6 (Appendix G),
p u r s u a n t to which t h e C o u r t of Appeals shall consist of
31
a Presiding J u s t i c e and 68 Associate J u s t i c e s , and shall

be composed of 23 divisions of 3 members each, with the
first 17 divisions stationed in Manila, the 18th to 20th
divisions in Cebu City, and the 21st to 23rd divisions in
Cagayan de Oro City.
3. The Courts of First Instance, the Circuit Criminal
Courts, the Juvenile and Domestic Relations Courts and
the Courts of Agrarian Relations have been i n t e g r a t e d
into the Regional Trial Courts for each of the 13 Judicial
Regions which replaced the former 16 Judicial Districts,
each Regional Trial Court to consist of t h e n u m b e r of
branches provided in Section 14 of t h e Act.
4. The city courts and municipal courts in the

National Capital Judicial Region have been merged into
a Metropolitan Trial Court of M e t r o M a n i l a a n d were
converted into branches thereof (Sec. 27). The S u p r e m e
Court shall constitute other Metropolitan Trial Courts
in such other metropolitan a r e a s as may be established
by law a n d whose t e r r i t o r i a l j u r i s d i c t i o n s h a l l be co-
extensive with t h e cities a n d municipalities comprising
such metropolitan a r e a (Sec. 28).
5. The city courts in other cities which do not now

or hereafter form p a r t of a m e t r o p o l i t a n a r e a shall be
known as Municipal Trial Courts, with t h e corresponding
n u m b e r of b r a n c h e s (Sec. 29), and t h e municipal courts,
w h e t h e r of an ordinary municipality or of a capital of a
province or s u b - p r o v i n c e b u t not c o m p r i s e d w i t h i n a
metropolitan area and a municipal circuit, shall likewise
be known as Municipal Trial Courts with the corre-
sponding n u m b e r of b r a n c h e s (Sec. 30). The municipal
circuit courts shall be known as Municipal Circuit Trial
Courts and t h e S u p r e m e Court may further reorganize
the same (Sec. 31).
6. Excepted from t h e coverage of t h e Act a r e t h e

Supreme Court and the Sandiganbayan, but these
32
courts have been affected by t h e jurisdictional c h a n g e s

introduced t h e r e i n . The provisions of t h e J u d i c i a r y Act
of 1948 (R.A. 296, as amended), R.A. 5179, as a m e n d e d ,
the Rules of Court and all other s t a t u t e s , letters of
instructions and g e n e r a l o r d e r s or p a r t s thereof,
inconsistent with t h e provisions of this Act a r e repealed
or modified accordingly.
7. No mention is m a d e of t h e Court of Tax Appeals

since t h e Act is basically on t h e m a t t e r of jurisdictional
changes. However, a p p e a l s from its j u d g m e n t s or final
orders, which used to be governed by R.A. 1125, were l a t e r
required to be t a k e n to t h e Court of Appeals p u r s u a n t to
Revised A d m i n i s t r a t i v e Circular No. 1-95 of t h e S u p r e m e
Court, which t h e r e a f t e r w a s adopted as Rule 43 of these
revised Rules. See, however, t h e more recent changes in
R.A. 9282 (Appendix CC).
JURISDICTION
I. I n t e r m e d i a t e Appellate C o u r t (now, t h e Court of
Appeals):
"Sec. 9. Jurisdiction. — The I n t e r m e d i a t e Appellate

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

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

for a n n u l m e n t of j u d g m e n t s of Regional Trial Courts;
and
"(3) Exclusive appellate jurisdiction over all final
j u d g m e n t s , decisions, resolutions, orders or a w a r d s
of Regional Trial C o u r t s a n d quasi-judicial agencies,
i n s t r u m e n t a l i t i e s , b o a r d s or commissions, including
t h e Securities a n d Exchange Commission, t h e Social
Security Commission, t h e Employees Compensation
Commission a n d t h e Civil Service Commission, except
those falling w i t h i n t h e appellate jurisdiction of t h e
S u p r e m e Court in accordance with t h e Constitution,
t h e Labor Code of t h e Philippines u n d e r P r e s i d e n t i a l
Decree No. 442, as a m e n d e d , t h e provisions of this
Act, a n d of s u b p a r a g r a p h (1) of t h e t h i r d p a r a g r a p h
a n d s u b p a r a g r a p h (4) of t h e f o u r t h p a r a g r a p h of
Section 17 of t h e J u d i c i a r y Act of 1948.
"The C o u r t of A p p e a l s shall have t h e power to
try cases a n d conduct h e a r i n g s , receive evidence and
perform any a n d all acts necessary to resolve factual
issues raised in cases falling w i t h i n its original a n d
a p p e l l a t e jurisdiction, including t h e power to g r a n t
a n d conduct new t r i a l s or further proceedings. Trials
or h e a r i n g s in t h e C o u r t of A p p e a l s m u s t be con-
t i n u o u s a n d m u s t b e c o m p l e t e d w i t h i n t h r e e (3)
m o n t h s unless extended by t h e Chief Justice."
NOTES
1. Unlike t h e provisions of Sec. 30 of t h e J u d i c i a r y

Act, B . P . Blg. 129 v e s t e d t h e I n t e r m e d i a t e A p p e l l a t e
Court w i t h original jurisdiction to issue w r i t s of m a n -
damus, prohibition, certiorari, habeas corpus, a n d all other
auxiliary w r i t s a n d processes w h e t h e r or not in aid of its
appellate jurisdiction a n d added t h e special civil action of
quo w a r r a n t o to such original jurisdiction. F u r t h e r m o r e ,
the I n t e r m e d i a t e Appellate Court had exclusive original
35
jurisdiction over actions for the a n n u l m e n t of j u d g m e n t s

of the Regional Trial Courts. The latter, however, r e t a i n
t h e i r j u r i s d i c t i o n over a c t i o n s for t h e a n n u l m e n t of
j u d g m e n t s of t h e i n f e r i o r c o u r t s (Sec. 19), i.e., t h e
Metropolitan, Municipal and Municipal Circuit Trial
Courts (Sec. 25).
2. Amendatory of previous legislation, t h e appellate
jurisdiction of the t h e n Intermediate Appellate Court over
quasi-judicial agencies, or t h e so-called a d m i n i s t r a t i v e
t r i b u n a l s , was extended to and included t h e Securities
and Exchange Commission and the different boards
w h i c h took t h e place of t h e q u o n d a m P u b l i c S e r v i c e
Commission, i.e., the Boards of T r a n s p o r t a t i o n , Commu-
nications, and Power and Waterworks, whose decisions
were theretofore appealable to the S u p r e m e Court. Cases
involving petitions for naturalization and denaturalization
are now exclusively appealable to t h e Court of Appeals.
3. However, by specific provisions of Sec. 9 of this

Act, t h e S u p r e m e C o u r t r e t a i n e d exclusive a p p e l l a t e
jurisdiction over t h e decisions of the two constitutional
commissions, i.e., Commission on E l e c t i o n s a n d Com-
mission on Audit (see 1973 Constitution, Art. XII-C and
D). U n d e r the 1987 Constitution, this exclusive appellate
j u r i s d i c t i o n w a s m a d e t o i n c l u d e t h e Civil S e r v i c e
Commission (Sec. 7, Art. IX-A). Also, likewise specifically
excluded from t h e appellate jurisdiction of t h e I n t e r m e -
diate Appellate Court were decisions a n d interlocutory
orders u n d e r t h e Labor Code, such as those p r o m u l g a t e d
by the Secretary of Labor and Employment and the
National Labor Relations Commission, those of the Central
Board of Assessment Appeals, and t h e 5 types of cases
which fall within t h e exclusive appellate jurisdiction of
the Supreme Court under the 1973 Constitution (Sec. 5[2],
Art. X ) a n d r e p r o d u c e d i n t h e 1987 C o n s t i t u t i o n
(Sec. 5[2J, Art. VIII), as amplified in t h e provisions of t h e
Judiciary Act specified by said Sec. 9.
36
F u r t h e r m o r e , in view of t h e exclusionary provision

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

of Appeals provided for in Sec. 9(3) of B.P. Blg. 129 over
final orders or rulings of quasi-judicial i n s t r u m e n t a l i t i e s ,
boards or commissions refers to those which resulted from
proceedings w h e r e i n t h e a d m i n i s t r a t i v e body involved
exercised quasi-judicial functions. S u c h quasi-judicial
37
action or discretion involves the investigation of facts,

holding of hearings, drawing conclusions therefrom as a
basis for official action, and exercising discretion of a
judicial n a t u r e . Quasi-judicial adjudication r e q u i r e s a
determination of rights, privileges and duties resulting
in a decision or order which applies to a specific situation.
Rules and regulations of general applicability issued by
the administrative body to implement its purely adminis-
trative policies and functions, or those which a r e merely
incidents of its i n h e r e n t a d m i n i s t r a t i v e functions, a r e
not included in t h e appealable orders c o n t e m p l a t e d in
said provision, unless otherwise specifically provided by
other laws governing the m a t t e r . Controversies arising
from s u c h o r d e r s a r e w i t h i n t h e c o g n i z a n c e o f t h e
Regional Trial Courts (Lupangco, et al. vs. CA, et al.,
G.R. No. 77372, April 29, 1988).
6. It was formerly held t h a t t h e 30-day period to

a p p e a l t o t h e I n t e r m e d i a t e A p p e l l a t e C o u r t from a
decision or final o r d e r of t h e S e c u r i t i e s a n d E x c h a n g e
Commission, p u r s u a n t t o i t s r u l e s i s s u e d c o n s e q u e n t
to Sec. 6, P . D . 902-A, h a d n o t b e e n affected by B . P .
Blg. 129 w h i c h p r o v i d e s for a 15-day a p p e a l p e r i o d
from decisions of courts of justice. The Securities a n d
Exchange Commission is not a court; it is an adminis-
trative agency. Repeals by implication a r e not favored
(Gimenez Stockbrokerage & Co., Inc. vs. SEC, et al.,
G.R. No. 68568, Dec. 26, 1984).
7. The aforesaid doctrine was t a k e n into account by

the S u p r e m e Court in an appeal from a decision of t h e
Insurance Commission to the t h e n I n t e r m e d i a t e Appellate
Court since Sec. 416(7) of t h e I n s u r a n c e Code (P.D. 612,
as amended) provides for a 30-day period for a p p e a l from
notice of a final order, ruling, or decision of t h e Com-
mission. The S u p r e m e Court noted t h a t if t h e provisions
of R.A. 5434 were to be applied, p u r s u a n t to P a r . 22(c) of
t h e I n t e r i m Rules which g o v e r n s a p p e a l s from q u a s i -
38
judicial bodies, Sec. 2 thereof provides t h a t t h e a p p e a l

should be filed w i t h i n 15 days from notice of t h e ruling,
award, order, decision, or j u d g m e n t or from t h e d a t e of
its last publication if required by law, or in case a motion
for reconsideration is filed w i t h i n t h e period for appeal,
t h e n w i t h i n 10 days from notice or such publication of
the resolution d e n y i n g t h e motion for r e c o n s i d e r a t i o n .
Nevertheless, in line w i t h t h e ruling in Gimenez, since
the I n s u r a n c e Commission is likewise an a d m i n i s t r a t i v e
body, a p p e a l s from its final orders, decisions, resolutions,
or a w a r d s m a y not necessarily be deemed modified by
Sec. 3 9 o f B . P . B l g . 129 w h i c h l i m i t s t h e p e r i o d t o
a p p e a l to 15 d a y s (Midland Ins. Corp. vs. IAC, et al.,
G.R. No. 71905, Aug. 13, 1986; see also Zenith Ins. Corp.
vs. IAC, et al, G.R. No. 73336, Sept. 24, 1986; Malayan
Ins. Co., Inc. vs. Arnaldo, et al., G.R. No. 67835, Oct. 12,
1987).
8. T h e foregoing doctrines, however, a r e no longer

controlling in view of C i r c u l a r No. 1-91 i s s u e d by t h e
S u p r e m e C o u r t o n F e b r u a r y 27, 1991 w h i c h provided
t h a t a p p e a l s from quasi-judicial agencies s h a l l be t a k e n
to t h e C o u r t of A p p e a l s w i t h i n 15 days from notice or last
p u b l i c a t i o n o f t h e j u d g m e n t o r final o r d e r . T h i s w a s
more r e c e n t l y f u r t h e r amplified by Revised A d m i n i s -
t r a t i v e C i r c u l a r No. 1-95 which took effect on J u n e 1,
1995, a n d h a s now been formulated as Rule 43 of these
revised Rules.
9. It will also be recalled t h a t appeals from the
decisions, o r d e r s or r u l i n g s of t h e t h r e e c o n s t i t u t i o n a l
commissions, i.e., Civil Service Commission, Commission
on Elections a n d Commission on Audit, may be brought to
t h e S u p r e m e C o u r t on c e r t i o r a r i w i t h i n 30 days from
receipt thereof unless otherwise provided by the Consti-
t u t i o n or by law (Sec. 7, Art. IX-A, 1987 Constitution).
However, as earlier stated, Sec. 9 of B.P. Blg. 129 which
originally c o n t a i n e d t h e s a m e j u r i s d i c t i o n a l r u l e w a s
subsequently a m e n d e d by R.A. 7902, effective March 18,
39
1995, to provide t h a t a p p e a l s from t h e Civil Service

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

"SEC. 19. Jurisdiction in civil cases. — R e g i o n a l
40
Trial C o u r t s s h a l l exercise exclusive original jurisdiction:

(1) In all civil actions in which t h e subject of t h e
litigation is incapable of pecuniary estimation;
(2) In all civil actions which involve t h e t i t l e
to, or possession of, r e a l p r o p e r t y , or any i n t e r e s t
t h e r e i n , w h e r e t h e a s s e s s e d value o f t h e p r o p e r t y
involved exceeds Twenty t h o u s a n d pesos (P20.000.00)
or, for civil actions in M e t r o Manila, where such value
exceeds Fifty t h o u s a n d p e s o s (P50.000.00) except
actions for forcible e n t r y into a n d unlawful d e t a i n e r
of l a n d s or buildings, original jurisdiction over which
is conferred upon the Metropolitan Trial Courts,
Municipal Trial C o u r t s a n d Municipal Circuit Trial
Courts;
(3) In all a c t i o n s in a d m i r a l t y a n d m a r i t i m e
jurisdiction w h e r e t h e d e m a n d or claim exceeds One
h u n d r e d t h o u s a n d pesos (F100.000.00) or, in Metro
M a n i l a , w h e r e s u c h d e m a n d or claim exceeds Two
h u n d r e d t h o u s a n d pesos (P200.000.00);
(4) In all m a t t e r s of probate, both t e s t a t e and
intestate, where the gross value of the estate
exceeds One h u n d r e d t h o u s a n d pesos (P 100,000.00)
or, in p r o b a t e m a t t e r s in M e t r o Manila, w h e r e such
gross value exceeds Two h u n d r e d t h o u s a n d pesos
(P200,000.00);
(5) I n a l l a c t i o n s i n v o l v i n g t h e c o n t r a c t o f
m a r r i a g e a n d m a r i t a l relations;
(6) In all cases not w i t h i n t h e exclusive juris-
d i c t i o n o f a n y c o u r t , t r i b u n a l , p e r s o n o r body
exercising [jurisdiction of any court, t r i b u n a l , person
or body exercising] judicial or quasi-judicial
functions;*
(7) In a l l civil a c t i o n s s p e c i a l p r o c e e d i n g s *
' T h e b r a c k e t e d portion in Par. (6) a p p e a r s to be a t y p o g r a p h i c a l
e r r o r b y r e p e t i t i o n , w h i l e t h e i n d i c a t e d p o r t i o n i n P a r . (7) s h o u l d h a v e a
c o n j u n c t i o n b e t w e e n "civil a c t i o n s " a n d " s p e c i a l p r o c e e d i n g s . "
41
falling within t h e exclusive original jurisdiction of a

Juvenile and Domestic Relations Court a n d of t h e
Court of Agrarian Relations as now provided by law;
and
(8) In all o t h e r c a s e s in w h i c h t h e d e m a n d ,
exclusive of i n t e r e s t , d a m a g e s of w h a t e v e r k i n d ,
attorney's fees, litigation expenses and costs or the
value of t h e p r o p e r t y in controversy exceeds One
h u n d r e d t h o u s a n d pesos (PlOO.OOO.OO) or, in such
o t h e r cases i n M e t r o M a n i l a , w h e r e t h e d e m a n d ,
exclusive of t h e abovementioned items exceeds Two
h u n d r e d t h o u s a n d pesos (P200.000.00)." (As amen-
ded by R.A. 7691)
X X X
"Sec. 2 1 . Original jurisdiction in other cases. —

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

"Sec. 2 3 . Special jurisdiction to try special cases. —
The S u p r e m e C o u r t m a y d e s i g n a t e c e r t a i n b r a n c h e s of
the Regional T r i a l C o u r t s to h a n d l e exclusively criminal
cases, j u v e n i l e a n d d o m e s t i c r e l a t i o n s cases, a g r a r i a n
cases, u r b a n land reform cases which do not fall u n d e r
t h e j u r i s d i c t i o n of q u a s i - j u d i c i a l bodies a n d a g e n c i e s ,
and/or s u c h o t h e r special cases a s t h e S u p r e m e C o u r t
may d e t e r m i n e in t h e i n t e r e s t of a speedy a n d efficient
a d m i n i s t r a t i o n of justice."
NOTES
1. R.A. 7 6 9 1 , w h i c h took effect on April 15, 1994

(see Appendix N), e x p a n d e d t h e j u r i s d i c t i o n of t h e
metropolitan, municipal and municipal circuit trial
c o u r t s i n civil a n d c r i m i n a l c a s e s , t h e a m e n d e d civil
jurisdiction being set out hereinafter. In Administrative
Circular No. 09-94 (see Appendix O), t h e S u p r e m e Court,
by w a y of g u i d e l i n e s in t h e i m p l e m e n t a t i o n of s a i d
a m e n d a t o r y Act, m a d e t h e clarification t h a t :
"2. T h e e x c l u s i o n o f t h e t e r m ' d a m a g e s o f
whatever kind' in determining the jurisdictional
a m o u n t u n d e r S e c t i o n 19(8) a n d Section 33(1) of
B.P. Blg. 129, as a m e n d e d by R.A. No. 7691, applies
t o cases w h e r e t h e d a m a g e s a r e merely incidental
to or a c o n s e q u e n c e of t h e m a i n c a u s e of a c t i o n .
However, in cases w h e r e t h e claim for d a m a g e s is t h e
m a i n c a u s e of action, or one of t h e causes of action,
the a m o u n t of such claim shall be considered in
d e t e r m i n i n g t h e jurisdiction of t h e court."
T h i s j u r i s d i c t i o n a l r u l e w a s a p p l i e d i n Ouano vs.
PGTT International Investment Corp. (G.R. No. 134230,
July 17, 2002).
On t h e m a t t e r of t h e jurisdictional a m o u n t in civil
cases, R.A. 7691 additionally provides:
43
"Sec. 5. After five (5) years from t h e effectivity of

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

Courts. The J u v e n i l e a n d Domestic Relations C o u r t s a n d
the C o u r t s of A g r a r i a n Reform h a v i n g been i n t e g r a t e d
into t h e R e g i o n a l T r i a l C o u r t s , t h e l a t t e r s h a l l h a v e
exclusive original jurisdiction over said cases and
proceedings b u t t h e y shall continue to apply t h e special
rules of procedure u n d e r t h e p r e s e n t laws provided for
domestic r e l a t i o n s cases a n d a g r a r i a n cases, u n l e s s t h e
same a r e s u b s e q u e n t l y a m e n d e d by such law or rules of
court as may be p r o m u l g a t e d (Sec. 24).
3. The w r i t s of certiorari, prohibition, m a n d a m u s ,

quo w a r r a n t o , habeas corpus, a n d injunction issued by
the Regional Trial Courts are enforceable within
their respective regions, while u n d e r t h e J u d i c i a r y Act
(Sec. 44[hJ), t h e s e could be enforced only w i t h i n t h e
respective provinces a n d districts u n d e r t h e jurisdiction
of the C o u r t s of F i r s t I n s t a n c e .
4. The concurrent jurisdiction between the Courts

of First I n s t a n c e a n d t h e inferior c o u r t s in cases provided
for u n d e r t h e J u d i c i a r y Act h a s b e e n e l i m i n a t e d . The
Regional T r i a l C o u r t s s h a l l exercise exclusive original
jurisdiction i n g u a r d i a n s h i p a n d adoption cases which,
u n d e r t h e a m e n d m e n t s of t h e J u d i c i a r y Act by R.A. 643
and R.A. 644, w e r e w i t h i n t h e confluent j u r i s d i c t i o n of
the inferior c o u r t s . T h e c o n c u r r e n t j u r i s d i c t i o n b e t w e e n
t h e C o u r t s of F i r s t I n s t a n c e a n d t h e City C o u r t s over
the cases s t a t e d in Sec. 3, R.A. 6967, i.e., p e t i t i o n s for
change of n a m e of n a t u r a l i z e d citizens, cancellation or
correction of t y p o g r a p h i c a l e r r o r s in t h e city r e g i s t r y ,
a n d e j e c t m e n t c a s e s w h e r e t h e i s s u e of o w n e r s h i p is
involved, h a s l i k e w i s e b e e n e l i m i n a t e d . S a i d law i s
d e e m e d r e p e a l e d by B.P. Blg. 129 (Lee vs. Presiding
Judge, etc., et al., G.R. No. €8789, Nov. 10, 1986).
5. The c o n c u r r e n t jurisdiction b e t w e e n t h e Courts
of First Instance and inferior courts having been
abolished, t h e decisions of t h e inferior courts in all cases
45
are now appealable to the Regional Trial Courts, except

c a d a s t r a l a n d land r e g i s t r a t i o n cases decided b y t h e
inferior courts in t h e exercise of delegated jurisdiction
(Sec. 34).
6. Admiralty jurisdiction regulates maritime m a t t e r s
and cases, such as contracts relating to t h e t r a d e a n d
b u s i n e s s of t h e sea a n d e s s e n t i a l l y fully m a r i t i m e in
character, like maritime services, t r a n s a c t i o n s or casual-
ties (see Macondray & Co. vs. Delgado Bros., Inc., 107
Phil. 781; Delgado Bros., Inc. vs. Home Insurance Co.,
L16131, Mar. 27, 1961; Elite Shirt Factory, Inc. vs.
Cornejo, L-26718, Oct. 31, 1961; Negre vs. Cabahug
Shipping & Co., L-19609, April 29, 1966).
7. Civil actions in which the subject of t h e litigation

is i n c a p a b l e of p e c u n i a r y e s t i m a t i o n h a v e i n v a r i a b l y
been w i t h i n t h e exclusive o r i g i n a l j u r i s d i c t i o n of t h e
courts of general jurisdiction, i.e., t h e former C o u r t s of
F i r s t I n s t a n c e , now t h e Regional T r i a l C o u r t s . T h u s ,
actions for s u p p o r t which will require t h e d e t e r m i n a t i o n
of t h e civil s t a t u s or t h e r i g h t to s u p p o r t of t h e plaintiff,
those for t h e a n n u l m e n t of decisions of lower courts, or
those for t h e rescission or reformation of c o n t r a c t s a r e
incapable of pecuniary estimation.
a. Where t h e action supposedly for a s u m of money
required t h e d e t e r m i n a t i o n of w h e t h e r t h e plaintiff had
complied w i t h t h e condition p r e c e d e n t in t h e c o n t r a c t
which, if complied with, would entitle him to t h e a w a r d
of t h e a m o u n t c l a i m e d , t h e a c t i o n is one for specific
p e r f o r m a n c e a n d not for a s u m of m o n e y , h e n c e t h e
relief sought was incapable of pecuniary e s t i m a t i o n and
w a s w i t h i n t h e j u r i s d i c t i o n of t h e t h e n C o u r t of F i r s t
I n s t a n c e (Ortigas & Co. vp. Herrera, et al., L-36098,
Jan. 21, 1983).
b. An action to compel t h e obligor to complete t h e
construction of a house is one for specific performance
46
and is incapable of pecuniary estimation, hence jurisdic-

tion is vested in t h e Regional Trial Court. Where t h e
complaint in said case, however, contains an a l t e r n a t i v e
p r a y e r for t h e p a y m e n t to t h e obligee of a s u m n o t
exceeding t h e p r e s e n t jurisdictional a m o u n t of F100,000,
or in M e t r o Manila, P200.000, in lieu of t h e completion of
the construction, jurisdiction is in t h e inferior court as
such a l t e r n a t i v e p r a y e r m a k e s t h e action one for a s u m
of money (see Cruz vs. Tan, 87 Phil. 627).
c. An action for P1.250 and/or for t h e foreclosure of
a c h a t t e l m o r t g a g e of p e r s o n a l t y w o r t h F15,340 (now, it
s h o u l d be m o r e t h a n PIOO.OOO or, in M e t r o M a n i l a ,
P200.000) w a s u n d e r t h e j u r i s d i c t i o n of t h e C o u r t of
F i r s t I n s t a n c e b e c a u s e o f t h e l a t t e r a l t e r n a t i v e relief
s o u g h t (Good Development Corp. vs. Tutaan, et al.,
L-41641, Sept. 30,1976). Jurisdiction was likewise vested
in t h e C o u r t of F i r s t I n s t a n c e w h e r e none of t h e claims
of t h e p a r t n e r s h i p ' s c r e d i t o r s exceeded P2.000 b u t t h e
suit also s o u g h t t h e nullification of a contract executed
by and b e t w e e n t h e former p a r t n e r s , as t h e l a t t e r cause
of action is not capable of pecuniary e s t i m a t i o n (Singson,
et al. vs. Isabela Sawmill Co., et al., L-27343, Feb. 28,
1979).
d. W h e r e t h e case h i n g e s u p o n t h e correct inter-
p r e t a t i o n of t h e r e n e w a l clause of a lease contract, t h e
action is not for unlawful d e t a i n e r b u t one which is not
capable of p e c u n i a r y e s t i m a t i o n a n d is, therefore, outside
the jurisdiction of t h e inferior court (Vda. de Murga vs.
Chan, L-24680, Oct. 7, 1968). B u t w h e r e t h e ejectment
case w a s decided a g a i n s t t h e defendants because of non-
p a y m e n t of r e n t a l s , a l t h o u g h t h e i n t e r p r e t a t i o n of t h e
renewal clause of t h e lease contract was also involved
therein, t h e s a m e was within t h e jurisdiction of t h e in-
ferior courts (Nueva Vizcaya Chamber of Commerce vs.
CA, et al., L-49059, May 29, 1980).
47
I I I . Family Courts:
1. On October 28, 1997, Congress enacted R.A.
8369 ( F a m i l y C o u r t s Act of 1997; s e e Appendix P)
establishing a Family Court in every province and city
and, in case the city is t h e provincial capital, t h e Family
Court shall be established in t h e municipality w i t h the
highest population. Pending t h e e s t a b l i s h m e n t of such
Family Courts, t h e S u p r e m e Court shall d e s i g n a t e t h e
s a m e from a m o n g t h e b r a n c h e s of t h e R e g i o n a l T r i a l
Courts e n u m e r a t e d in the Act; and in a r e a s w h e r e t h e r e
a r e n o F a m i l y C o u r t s , t h e c a s e s w h i c h a r e w i t h i n its
exclusive original jurisdiction shall be adjudicated by t h e
Regional Trial Court.
2. F u r t h e r a m e n d a t o r y of t h e provisions of B.P. Blg. 129, as a m e n d e d , t h e F a m i l y C o u r t s s h a l l h a v e

exclusive original jurisdiction in t h e following civil cases
or proceedings:
a. P e t i t i o n s for g u a r d i a n s h i p , custody of children,

habeas corpus in relation to t h e latter;
b . P e t i t i o n s for a d o p t i o n o f c h i l d r e n a n d t h e
revocation thereof;
c. Complaints for a n n u l m e n t of marriage, declaration
of nullity of m a r r i a g e and those relating to m a r i t a l s t a t u s
and property relations of h u s b a n d and wife or those living
t o g e t h e r u n d e r different s t a t u s a n d a g r e e m e n t s , a n d
petitions for dissolution of conjugal p a r t n e r s h i p of gains;
d. Petitions for s u p p o r t and/or acknowledgment;
e. S u m m a r y judicial proceedings b r o u g h t u n d e r t h e
provisions of Executive O r d e r No. 209 (Family Code of
the Philippines);
f. Petitions for declaration of s t a t u s of children as
a b a n d o n e d , d e p e n d e n t or neglected children, p e t i t i o n s
for voluntary or involuntary commitment of children; t h e
suspension, termination, or restoration of p a r e n t a l
a u t h o r i t y u n d e r P.D. 603, Executive Order No. 56 (Series
48
of 1986), a n d o t h e r related laws;

g. Petitions for t h e constitution of t h e family home;
and
h. C a s e s of domestic violence a g a i n s t w o m e n a n d
children, as defined t h e r e i n , b u t which do not constitute
c r i m i n a l offenses subject to c r i m i n a l p r o c e e d i n g s a n d
penalties.
3. I m p l e m e n t i n g the foregoing provisions, the

S u p r e m e Court approved on M a r c h 4, 2003 t h e Rule on
D e c l a r a t i o n o f A b s o l u t e N u l l i t y o f Void M a r r i a g e s
and A n n u l m e n t of Voidable M a r r i a g e s in A.M.
No. 02-11-10-SC (see Appendix AA) a n d t h e Rule on
Legal S e p a r a t i o n in A.M. No. 02-11-11-SC (see
Appendix BB).
IV. M e t r o p o l i t a n T r i a l C o u r t s , Municipal Trial C o u r t s

a n d Municipal Circuit Trial Courts:
"SEC. 33. Jurisdiction of Metropolitan Trial Courts,
Municipal Trial Courts and Municipal Circuit Trial
Courts in Civil Cases. — M e t r o p o l i t a n T r i a l C o u r t s ,
Municipal Trial Courts and Municipal Circuit Trial
Courts shall exercise:
(1) E x c l u s i v e o r i g i n a l j u r i s d i c t i o n over civil
actions a n d p r o b a t e proceedings, t e s t a t e a n d inte-
s t a t e , including t h e g r a n t of provisional remedies in
proper cases, where the value of the personal
property, e s t a t e , or a m o u n t of t h e d e m a n d does not
exceed One h u n d r e d t h o u s a n d pesos (P 100,000.00)
or, in M e t r o Manila w h e r e such personal property,
e s t a t e or a m o u n t of t h e d e m a n d does not exceed Two
h u n d r e d t h o u s a n d pesos (P200.000.00), exclusive of
interest, d a m a g e s of w h a t e v e r kind, attorney's fees,
litigation expenses, and costs, the a m o u n t of which
m u s t be specifically alleged: Provided, T h a t interest,
d a m a g e s of w h a t e v e r kind, attorney's fees, litigation
49
expenses, and costs shall be included in the

d e t e r m i n a t i o n of t h e filing fees: Provided further,
T h a t w h e r e t h e r e are s e v e r a l claims or c a u s e s of
action b e t w e e n t h e s a m e or different p a r t i e s em-
bodied in t h e s a m e complaint, t h e a m o u n t of t h e
demand shall be the totality of t h e claims in all t h e
causes of action, irrespective of w h e t h e r t h e causes
of action arose out of the s a m e or different
transactions;
(2) Exclusive original jurisdiction over cases of
forcible entry and unlawful detainer: Provided, T h a t
when, in such cases, the defendant raises t h e question
of o w n e r s h i p in his pleadings and t h e q u e s t i o n of
possession cannot be resolved without deciding t h e
issue of ownership, t h e issue of ownership shall be
resolved only to determine the issue of possession; and
(3) Exclusive o r i g i n a l j u r i s d i c t i o n in all civil
actions which involve title to or possession of, real
property, or any i n t e r e s t t h e r e i n w h e r e t h e assessed
value of t h e p r o p e r t y or i n t e r e s t t h e r e i n does not
exceed Twenty thousand pesos (P20.000.00) or, in civil
actions in Metro Manila, w h e r e such assessed value
does not exceed Fifty t h o u s a n d pesos (P50.000.00)
exclusive of i n t e r e s t , d a m a g e s of w h a t e v e r k i n d ,
a t t o r n e y ' s fees, l i t i g a t i o n e x p e n s e s a n d costs:
Provided, T h a t in c a s e s of l a n d n o t d e c l a r e d for
t a x a t i o n purposes t h e value of such property shall be
d e t e r m i n e d by t h e a s s e s s e d value of t h e adjacent
lots." (As amended by R.A. 7691)
"SEC. 34. Delegated jurisdiction in cadastral and
land registration cases. — M e t r o p o l i t a n T r i a l C o u r t s ,
Municipal Trial Courts, and Municipal Circuit Trial
Courts may be assigned by t h e S u p r e m e Court to h e a r
and determine cadastral or land registration cases
covering lots w h e r e t h e r e is no controversy or opposition,
or contested lots where t h e value of which does not exceed
50
One h u n d r e d t h o u s a n d pesos (PIOO.OOO.OO), such value

to be a s c e r t a i n e d by t h e affidavit of t h e c l a i m a n t or by
a g r e e m e n t of t h e respective c l a i m a n t s if t h e r e a r e more
t h a n one, or from t h e corresponding tax declaration of
the r e a l p r o p e r t y . T h e i r decisions in t h e s e cases shall be
appealable in t h e s a m e m a n n e r as decisions of t h e Re-
gional Trial Courts." (As amended by R.A. 7691)
"Sec. 35. Special jurisdiction in certain cases. — In
the absence of all t h e Regional Trial J u d g e s in a province
or city, a n y M e t r o p o l i t a n T r i a l J u d g e , Municipal Trial
Judge, Municipal Circuit Trial J u d g e may h e a r and decide
petitions for a w r i t of habeas corpus or applications for
bail in c r i m i n a l cases in t h e province or city w h e r e t h e
absent Regional T r i a l J u d g e s sit."
NOTES
1. The jurisdictional a m o u n t within t h e exclusive

original jurisdiction of the inferior courts has been
i n c r e a s e d to PIOO.OOO, or in M e t r o M a n i l a , P 2 0 0 . 0 0 0
exclusive of i n t e r e s t s , d a m a g e s , a t t o r n e y ' s fees, litigation
expenses a n d costs, b u t w i t h t h e proviso t h a t t h e a m o u n t
thereof m u s t be specifically alleged.
2. Unlike t h e jurisdictional t e s t in joinder of claims

or causes of action in the same complaint under the
J u d i c i a r y Act (Sec. 88), t h e t o t a l i t y of all t h e c l a i m s
a l l e g e d i n all t h e c a u s e s o f a c t i o n s h a l l f u r n i s h t h e
jurisdictional test whether the same pertains to the
same or different p a r t i e s a n d irrespective of w h e t h e r t h e
causes of action arose out of the same or different
t r a n s a c t i o n s , b u t subject to the rule in Sec. 6, Rule 3 if
permissive joinder of p a r t i e s is involved.
3. U n d e r t h e Judiciary Act (Sec. 88), an inferior court
could i s s u e t h e w r i t s o f p r e l i m i n a r y a t t a c h m e n t a n d
replevin w h e r e t h e principal action was within its juris-
diction, and the w r i t of p r e l i m i n a r y prohibitory or
51
m a n d a t o r y injunction b u t only in forcible e n t r y cases

(cf. Sec. 3, Rule 70; Art. 539, Civil Code). U n d e r B.P. Blg. 129, provided t h a t t h e m a i n action is w i t h i n its
j u r i s d i c t i o n , in a d d i t i o n to t h e foregoing p r o v i s i o n a l
remedies an inferior court can appoint a receiver and it
has jurisdiction to issue a writ of preliminary injunction
in either forcible e n t r y or unlawful d e t a i n e r cases.
4. The inferior courts now have probate jurisdic-

tion where t h e gross value of t h e e s t a t e , w h e t h e r t e s t a t e
or i n t e s t a t e , does not exceed P 100,000, or if in M e t r o
Manila, P200.000. However, it has been held u n d e r the
former provision w h e r e t h e j u r i s d i c t i o n a l a m o u n t w a s
only up to P20.000, t h a t w h e r e the property was t h e only
one wherein the decedent had any p r o p r i e t a r y rights, is
conjugal in n a t u r e , it is t h e total value of such conjugal
p r o p e r t y , a n d not only t h e v a l u e of t h e s h a r e of t h e
decedent therein, which should furnish t h e jurisdictional
t e s t . This is because t h e s e t t l e m e n t proceedings will
necessarily entail t h e dissolution and s e t t l e m e n t of t h e
conjugal p a r t n e r s h i p and the property thereof (Fernandez,
etc., et al. vs. Maravilla, L-18799, Mar. 31, 1964). T h u s ,
u n d e r the p r e s e n t jurisdictional rule, if t h e only property
of the conjugal p a r t n e r s h i p located outside Metro Manila
has a gross value of P 150,000, while said decedent's s h a r e
t h e r e i n which constitutes his e s t a t e is normally P75.000
in value, t h e proceedings will have to be i n s t i t u t e d in t h e
Regional Trial Court since t h e total value of said property
exceeds t h e probate jurisdiction of t h e inferior court.
5 . T h e r e g l e m e n t a r y p e r i o d s for a p p e a l s from
j u d g m e n t s or final o r d e r s of t h e different t r i a l c o u r t s
have been made uniform at 15 days from receipt thereof,
except in special p r o c e e d i n g s , cases w h e r e i n m u l t i p l e
appeals are permitted, and habeas corpus cases. For a
detailed discussion on t h e bases, modes and periods for
a p p e a l from a n d to different c o u r t s , see Lacsamana,
et al. vs. The Hon. Second Special Cases Division of the
52
Intermediate Appellate Court, et al. (G.R. Nos. 73146-53,

Aug. 26, 1986), set out after Sec. 8, Rule 40 in t h i s volume.
Note also t h e c h a n g e s t h a t have s u p e r v e n e d since t h e n
by r e a s o n of t h e 1997 r e v i s i o n of t h e R u l e s of Civil
Procedure a n d r e l e v a n t decisions of t h e S u p r e m e Court,
as they a r e discussed in t h e corresponding p a r t s of t h i s
work.
An a m e n d e d outline of t h e p r e s e n t jurisdiction of our

courts in civil cases is p r e s e n t e d in t h e succeeding pages.
6. A notable initiative is t h e s u p e r v e n i n g adoption
by t h e S u p r e m e Court of t h e "Rule of Procedure for small
claims" on S e p t e m b e r 9, 2008 to t a k e effect on October 1,
2008 after t h e r e q u i s i t e p u b l i c a t i o n . This Rule is
reproduced in full, t o g e t h e r w i t h t h e forms a n d p a p e r s
involved in its operation a n d processes (see Appendix EE)
and a r e spelled out in simple details as to abviate t h e need
for clarifying c o m m e n t s for now. However, should t h e
a p p l i c a t i o n a n d f u t u r e w o r k i n g s o f t h e Rule P r o d u c e
situations which would require a m e n d m e n t s or
explanation, t h e m a t t e r will be duly brought to t h e reader's
attention, w i t h a r e p o r t of t h e court's action t h e r e o n .
53
J U R I S D I C T I O N I N CIVIL C A S E S
I. S U P R E M E COURT
A. Original
1. Exclusive
a. P e t i t i o n s for c e r t i o r a r i , p r o h i b i t i o n or
m a n d a m u s against:
(1) Court of Appeals;
(2) Court of Tax Appeals;
(3) S a n d i g a n b a y a n ;
(4) Commission on Elections; and
(5) Commission on Audit.
2. Concurrent
a. With t h e Court of Appeals
(1) Petitions for certiorari, prohibition or
m a n d a m u s against:
(a) Regional Trial Courts;
(b) Civil Service Commission;
(c) C e n t r a l B o a r d o f A s s e s s m e n t
Appeals;
(d) N a t i o n a l Labor R e l a t i o n s Com-
mission; a n d
(e) O t h e r quasi-judicial agencies.
b. With t h e Court of Appeals a n d Regional
Trial Courts
(1) Petitions for certiorari, prohibition or
m a n d a m u s a g a i n s t courts of t h e first
level a n d o t h e r bodies; a n d
(2) Petitions for habeas corpus a n d quo
warranto.
c. With Regional Trial Courts
(1) Actions a g a i n s t a m b a s s a d o r s , o t h e r
public ministers a n d consuls.
54
J U R I S D I C T I O N IN CIVIL C A S E S
B. Appellate
1. Petitions for review on certiorari against:
a. Court of Appeals;
b. Court of Tax Appeals;
c. S a n d i g a n b a y a n ; a n d
d. Regional Trial Courts in cases involving —
(1) C o n s t i t u t i o n a l i t y or v a l i d i t y of a
treaty, international or executive
a g r e e m e n t , law, p r e s i d e n t i a l decree,
proclamation, order, instruction,
ordinance, or regulation;
(2) Legality of a tax, impost, a s s e s s m e n t ,
toll or a p e n a l t y in relation t h e r e t o ;
(3) J u r i s d i c t i o n of a lower court; a n d
(4) Only e r r o r s or questions of law.
II. COURT OF APPEALS

A. Original
1. Exclusive
a. Actions for a n n u l m e n t of j u d g m e n t s of
Regional Trial Courts.
2. Concurrent
a. W i t h t h e S u p r e m e Court (see P a r . 2, sub-
p a r , a. on t h e original jurisdiction of t h e
S u p r e m e Court); a n d
b. With t h e S u p r e m e Court and t h e Regional
Trial C o u r t s (see P a r . 2, sub-par, b., loc.
cit.).
B. Appellate
1. O r d i n a r y a p p e a l s from:
a. Regional Trial Courts, except in cases
exclusively a p p e a l a b l e t o t h e S u p r e m e
Court, supra; and
55
b. Family Courts.
2. Appeal by petition for review from:
a. Civil Service Commission;
b. Central Board of Assessment Appeals;
c. Securities and Exchange Commission;
d. Land Registration Authority;
e. Social Security Commission;
f. Office of the President;
g. Civil Aeronautics Board;
h. B u r e a u s u n d e r the Intellectual Property
Office;
i. National Electrification Administration;
j . Energy Regulatory Board;
k. National Telecommunications Commission;
1. D e p a r t m e n t of A g r a r i a n Reform u n d e r
R.A. 6657;
m. Government Service I n s u r a n c e System;
n. Employees Compensation Commission;
o. Agricultural Inventions Board;
p. I n s u r a n c e Commission;
q. Philippine Atomic Energy Commission;
r. Board of I n v e s t m e n t s ;
s. Construction Industry Arbitration Commis-
sion;
t. Office of t h e O m b u d s m a n , in a d m i n i s t r a -
tive disciplinary cases; and
u. Any o t h e r quasi-judicial agency, i n s t r u -
mentality, board or commission in the
e x e r c i s e of i t s q u a s i - j u d i c i a l f u n c t i o n s ,
such as voluntary a r b i t r a t o r s .
3. Petitions for review from t h e Regional Trial
C o u r t s i n cases a p p e a l e d t h e r e t o from t h e
lower courts.
56
JURISDICTION IN CIVIL C A S E S
I I I . R E G I O N A L TRIAL C O U R T S
A. Original
1. Exclusive
a. Actions t h e subject m a t t e r s whereof are not
capable of pecuniary estimation;
b. Actions involving title to or possession of
r e a l p r o p e r t y or an i n t e r e s t t h e r e i n , w h e r e
the assessed value of such property exceeds
P 2 0 . 0 0 0 or, i n M e t r o M a n i l a , P 5 0 . 0 0 0 ,
except forcible e n t r y and u n l a w f u l
detainer;
c. Actions in a d m i r a l t y and m a r i t i m e juris-
diction w h e r e t h e d e m a n d or claim exceeds
PIOO.OOO or, in M e t r o Manila, P200.000;
d. M a t t e r s of p r o b a t e , t e s t a t e or i n t e s t a t e ,
w h e r e t h e gross value of t h e e s t a t e exceeds
P100,000 or, in M e t r o Manila, P200.000;
e. Cases not within t h e exclusive jurisdiction
of any court, t r i b u n a l , person or body exer-
cising judicial or quasi-judicial functions;
f. Actions a n d special proceedings within t h e
exclusive original jurisdiction of t h e Court
of A g r a r i a n Relations as now provided by
law; a n d
g. O t h e r cases w h e r e t h e demand, exclusive
o f i n t e r e s t , d a m a g e s , a t t o r n e y ' s fees,
litigation expenses and costs, or t h e value
of t h e p r o p e r t y exceeds P 100,000 or, in
Metro Manila, P200,000.
2. Concurrent
a. With t h e S u p r e m e Court:
(1) Actions affecting a m b a s s a d o r s , other
public ministers and consuls.
b. With t h e S u p r e m e Court and the Court of
Appeals:
57
(1) Petitions for certiorari, prohibition and

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

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

CIPAL CIRCUIT TRIAL COURTS
A. Original
1. Exclusive
a. Actions involving personal property valued
at not more t h a n P 100,000 or, in M e t r o
Manila, =P200,000;
b . A c t i o n s d e m a n d i n g s u m s o f m o n e y not
exceeding P 100,000 or, in Metro Manila,
P200.000, exclusive of interest, d a m a g e s ,
a t t o r n e y ' s fees, litigation e x p e n s e s , a n d
costs;
c. Actions in a d m i r a l t y a n d m a r i t i m e juris-
diction w h e r e t h e d e m a n d or claim does not
e x c e e d P 1 0 0 . 0 0 0 or, i n M e t r o M a n i l a ,
P200,000, exclusive of interest, d a m a g e s ,
a t t o r n e y ' s fees, litigation e x p e n s e s , a n d
costs;
d. P r o b a t e proceedings, t e s t a t e or i n t e s t a t e ,
w h e r e t h e gross value of t h e e s t a t e does
not exceed P 100,000 or, in Metro Manila,
P200.000;
e. Forcible entry and unlawful detainer
cases;
59
RULE 1 REMEDIAL LAW C O M P E N D I U M SEC. 1
f. Actions involving title to or possession of

real property, or any interest therein,
where t h e assessed value does not exceed
P20.000 or, in Metro Manila, P50.000, ex-
clusive of i n t e r e s t , d a m a g e s , a t t o r n e y ' s
fees, litigation expenses, and costs; and
g. Provisional remedies where the principal
action is within t h e i r jurisdiction.
2. Delegated
a. C a d a s t r a l or land registration cases
covering lots where t h e r e is no controversy
or opposition, or contested lots t h e value
of which does not exceed P 100,000, as may
be assigned by t h e S u p r e m e Court.
3. Special
a. Petitions for habeas corpus in t h e absence
of all t h e R e g i o n a l T r i a l J u d g e s in t h e
province or city.
4. S u m m a r y Procedure
a. Forcible entry and unlawful d e t a i n e r cases
irrespective of t h e a m o u n t of d a m a g e s or
unpaid r e n t a l s sought to be recovered; and
b. All other court cases, except p r o b a t e pro-
ceedings, w h e r e t h e total claim does not
exceed P 10,000, exclusive of i n t e r e s t a n d
costs.
60
RULE 1 GENERAL PROVISIONS SEC. 1
D. T H E R E V I S E D R U L E S OF COURT*
P u r s u a n t t o t h e p r o v i s i o n s o f s e c t i o n 5(5) o f
Article VIII o f t h e C o n s t i t u t i o n , t h e S u p r e m e C o u r t
h e r e b y a d o p t s a n d p r o m u l g a t e s t h e following r u l e s
concerning the protection and enforcement of
constitutional r i g h t s , pleading, practice and procedure in
all c o u r t s , t h e a d m i s s i o n t o t h e p r a c t i c e o f law, t h e
Integrated Bar, and legal assistance to the under-
privileged:
RULE 1
GENERAL PROVISIONS
S e c t i o n 1. Title of the Rules. — T h e s e R u l e s s h a l l

b e k n o w n a n d c i t e d a s t h e R u l e s o f C o u r t . (1)
NOTES
1. The Rules of Court have t h e force and effect of

law (Shioji vs. Harvey, etc., et al., 43 Phil. 333; Alvero
vs. De la Rosa, etc., et al., 76 Phil. 428; Conlu vs. CA,
et al., 106 Phil. 940). They a r e not p e n a l s t a t u t e s and
cannot be given retroactive effect (Rilloraza vs. Arciaga,
L 23848, Oct. 31, 1967; Bermejo vs. Barrios, L-23614,
Feb. 27, 1970). However, s t a t u t e s r e g u l a t i n g the proce-
dure of courts may be made applicable to cases pending
at the time of t h e i r passage and are retroactive in t h a t
sense (see Alday vs. Camilon, G.R. No. 60316, Jan. 31,
1983).
2. " W h e n by l a w j u r i s d i c t i o n is c o n f e r r e d on a
court or judicial officer, all auxiliary writs, processes and
*Theae revised Rules of Civil Procedure were approved by the

S u p r e m e Court in its R e s o l u t i o n in Bar Matter No. 8 0 3 , d a t e d April 8,
1997, to t a k e effect on J u l y 1, 1997.
61
o t h e r m e a n s n e c e s s a r y to c a r r y it into effect may be

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

such action within two y e a r s after t h e disability is
removed u n l e s s t h e r i g h t of action is one of those
n a m e d in subdivision four of section forty-three, in
which case it may be brought within one y e a r after
such disability is removed."
:
"Sec. 4 7 . As to Absent Persons. — If, w h e n a
cause of action accrues a g a i n s t a person, he is out
of the Philippine Islands, or has absconded or
c o n c e a l e d himself, a n d h a s n o k n o w n o r visible
p r o p e r t y w i t h i n t h e I s l a n d s t h e period limited for
t h e commencement of t h e action shall not begin to
r u n u n t i l he comes into t h e Islands or while he is so
absconded or concealed, or u n t i l he h a s k n o w n or
visible p r o p e r t y w i t h i n t h e Islands; a n d if, after t h e
cause of action accrues, he d e p a r t s from t h e Philip-
pine I s l a n d s , or absconds or conceals himself, t h e
t i m e of h i s a b s e n c e or c o n c e a l m e n t s h a l l not be
c o m p u t e d as a n y p a r t of t h e period w i t h i n which
time t h e cause of action should be brought."
It should be noted t h a t Art. 2270(3) of t h e Civil Code
repeals only t h e provisions of t h e Code of Civil Procedure
on prescription as far as t h e l a t t e r may be inconsistent
with t h e former, a n d A r t s . 1106 to 1155 of the Civil Code
do not provide for t h e above s i t u a t i o n s . Art. 1108 of said
Code provides t h a t extinctive prescription r u n s against
minors or incapacitated persons only if they have p a r e n t s ,
g u a r d i a n s or legal r e p r e s e n t a t i v e s .
4* F u r t h e r m o r e , it h a s been held t h a t not all t h e pro-
visions in t h e Code of Civil P r o c e d u r e a r e r e m e d i a l in
n a t u r e , such as those p e r t a i n i n g to prescription, t h e re-
quisites for m a k i n g a will, a n d t h e succession to t h e e s t a t e
of t h e adopted child (Primicias vs. Ocampo, etc., et al., 93
Phil. 446). Specifically w i t h respect to t h e above-quoted
provisions on prescription, not being procedural in n a t u r e ,
they cannot be deemed to have been impliedly repealed
63
RULE 1 R E M E D I A L LAW C O M P E N D I U M SEC. 4
j u s t because they were not incorporated in t h e Rules of

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

s h a l l a p p l y i n all t h e c o u r t s , e x c e p t a s o t h e r w i s e
p r o v i d e d b y t h e S u p r e m e Court, (n)
NOTES
1. The 1987 Constitution provides in Art. VIII thereof

that:
"Sec. 5. The S u p r e m e Court s h a l l have the
following powers:
(5) P r o m u l g a t e r u l e s concerning t h e protection

and enforcement of constitutional r i g h t s , pleading,
practice, and procedure in all courts, t h e admission
to t h e practice of law, t h e I n t e g r a t e d Bar, a n d legal
assistance to t h e underprivileged. Such rules shall
provide a simplified a n d inexpensive procedure for
t h e speedy disposition of cases, shall be uniform for
all courts of t h e same grade, and shall not diminish,
i n c r e a s e , or modify s u b s t a n t i v e r i g h t s . R u l e s of
procedure of special courts and quasi-judicial bodies
s h a l l r e m a i n effective u n l e s s d i s a p p r o v e d b y t h e
S u p r e m e Court."
64
2. P.D. 946 provided that t h e "Rules of Court shall

not be applicable to a g r a r i a n cases, even in a suppletory
c h a r a c t e r " and e a c h C o u r t of A g r a r i a n R e l a t i o n s t h e n
had t h e a u t h o r i t y to adopt any a p p r o p r i a t e procedure,
except t h a t i n c r i m i n a l a n d e x p r o p r i a t i o n c a s e s , t h e
Rules of Court shall apply (Sec. 16). U n d e r B.P. Blg. 129,
said a g r a r i a n c o u r t s were i n t e g r a t e d into t h e Regional
Trial C o u r t s as b r a n c h e s thereof, and "the l a t t e r shall
have exclusive original jurisdiction over said cases and
proceedings b u t they shall continue to apply t h e special
rules of procedures u n d e r t h e p r e s e n t laws" (Sec. 24).
R.A. 6657 subsequently provided for t h e designation
of at least one b r a n c h of t h e Regional Trial Court within
each province to act as a Special A g r a r i a n Court. The
Special A g r a r i a n Courts shall have original and exclusive
jurisdiction over all p e t i t i o n s for t h e d e t e r m i n a t i o n of
just compensation to l a n d o w n e r s and t h e prosecution of
all c r i m i n a l offenses u n d e r said Act (Secs. 56 and 57).
On t h e o t h e r h a n d , t h e D e p a r t m e n t of A g r a r i a n Reform
is v e s t e d w i t h p r i m a r y j u r i s d i c t i o n a n d quasi-judicial
powers to d e t e r m i n e a n d adjudicate all o t h e r a g r a r i a n
reform m a t t e r s . It shall not be bound by t h e technical
r u l e s o f p r o c e d u r e a n d e v i d e n c e b u t m a y employ all
reasonable m e a n s to a s c e r t a i n t h e facts in accordance
with justice, equity a n d t h e m e r i t s of t h e case (Sec. 50).
S e c . 3. Cases governed. — T h e s e R u l e s s h a l l
govern the procedure to be observed in actions,
civil o r c r i m i n a l , a n d s p e c i a l p r o c e e d i n g s .
(a) A c i v i l a c t i o n is o n e by w h i c h a p a r t y s u e s
a n o t h e r for t h e e n f o r c e m e n t o r p r o t e c t i o n o f a
right, or the p r e v e n t i o n or redress of a wrong,
( l a , R2)
A civil action may either be ordinary or special.
B o t h a r e g o v e r n e d b y t h e r u l e s for o r d i n a r y c i v i l
a c t i o n s , s u b j e c t t o t h e s p e c i f i c r u l e s p r e s c r i b e d for
a s p e c i a l c i v i l a c t i o n , (n)
65
RULE 1 R E M E D I A L LAW C O M P E N D I U M SEC. S
(b) A c r i m i n a l a c t i o n is o n e by w h i c h t h e S t a t e
p r o s e c u t e s a p e r s o n for an a c t or o m i s s i o n
p u n i s h a b l e by l a w . (n)
(c) A s p e c i a l p r o c e e d i n g is a r e m e d y by w h i c h a
p a r t y s e e k s to e s t a b l i s h a s t a t u s , a r i g h t , or a
p a r t i c u l a r fact. (2a, R2)
NOTES
1. In t h e Philippines, t h e r e is no difference between

a "suit" and an "action" as our courts are courts of law and
equity (see Lopez vs. Filipinos Cia. de Seguros, L-19613,
April 30, 1966). Likewise, in A m e r i c a n law, t h e t e r m s
" a c t i o n " a n d " s u i t " a r e now n e a r l y , i f n o t e n t i r e l y ,
synonymous (Elmos vs. James, Tex. Civ. App., 282 S.W.
835; Coleman vs. Los Angeles County, 180 Cal. 714, 182
P. 440), or if t h e r e be a distinction, it is t h a t t h e t e r m
"action" is generally confined to proceedings in a court
of law, while "suit" is equally applied to prosecutions at
law or in equity (Black's Law Dictionary, 6th Ed., p. 1434).
2. The S u p r e m e Court h a s i n h e r e n t jurisdiction t h a t

it can always exercise in s e t t i n g s a t t e n d e d by u n u s u a l
c i r c u m s t a n c e s to p r e v e n t manifest injustice t h a t could
result to b a r e technical adherence to t h e law a n d impre-
cise j u r i s p r u d e n c e (Co vs. PNB, G.R. No. 51767, June 29,
1982).
3. In an ordinary action, t h e r e m u s t be r e a l p a r t i e s
in i n t e r e s t a s s e r t i n g adverse claims and p r e s e n t i n g a ripe
issue (Tolentino vs. Board of Accountancy, 90 Phil. 88).
S e c . 4. In what cases not applicable. — T h e s e R u l e s

shall not apply to election cases, land registration,
cadastral, naturalization and insolvency pro-
c e e d i n g s , a n d o t h e r c a s e s n o t h e r e i n p r o v i d e d for,
except by analogy or in a suppletory character and
w h e n e v e r p r a c t i c a b l e a n d c o n v e n i e n t . (R143a)
66
NOTE
1. See Note 3 u n d e r Sec. 5, Rule 2. C' r'\
S e c . 5. Commencement of action. — A c i v i l a c t i o n
is commenced by the filing of the original complaint
in court. If an additional defendant is impleaded in
a later pleading, the action is c o m m e n c e d with
regard to h i m on the date of the filing of such later
p l e a d i n g , i r r e s p e c t i v e o f w h e t h e r t h e m o t i o n for i t s
a d m i s s i o n ^ i f n e c e s s a r y , i s d e n i e d b y t h e c o u r t . (6a)
NOTES
1. This provision a s s u m e s significance especially

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

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

vs. Asuncion, et al., G.R. Nos. 79937-38, Feb. 13, 1989).
4. It is t r u e t h a t Manchester laid down the rule t h a t
all complaints should specify t h e a m o u n t of t h e d a m a g e s
prayed for not only in t h e body of t h e complaint b u t also
i n t h e p r a y e r . T h a t r u l e , however, h a s been relaxed.
Thus, while t h e body of t h e complaint in t h i s case is silent
as to t h e exact a m o u n t of d a m a g e s , t h e p r a y e r did specify
the a m o u n t . These a m o u n t s were definite enough and
enabled t h e clerk of c o u r t to c o m p u t e t h e docket fees
payable. F u r t h e r m o r e , t h e a m o u n t s claimed need not be
initially s t a t e d w i t h m a t h e m a t i c a l precision. Section 5(a),
Rule 141 allows an a p p r a i s a l "more or less," t h a t is, a final
d e t e r m i n a t i o n is still to be made and t h e fees ultimately
found to be payable will e i t h e r be additionally paid by or
refunded to t h e p a r t y concerned, as t h e case may be. The
party is, therefore, allowed to make an initial p a y m e n t of
the filing fees c o r r e s p o n d i n g to t h e e s t i m a t e d a m o u n t
of the claim subject to a d j u s t m e n t as to w h a t may later
be proved (Ng Soon vs. Alday, et al., G.R. No. 85879,
Sept. 29, 1989).
5. W h e r e t h e action involves r e a l property (such as

an accion publiciana) a n d r e l a t e d claims for d a m a g e s , t h e
legal fees s h a l l be a s s e s s e d on b o t h t h e v a l u e of t h e
property a n d t h e t o t a l a m o u n t o f t h e d a m a g e s sought.
Where t h e fees prescribed for an action involving r e a l
property have been paid but t h e a m o u n t s for t h e related
d a m a g e s being d e m a n d e d t h e r e i n a r e unspecified, t h e
action may not be dismissed. The court acquired
jurisdiction over t h e action involving real property upon
t h e filing o f t h e c o m p l a i n t a n d t h e p a y m e n t o f t h e
prescribed fee therefor. It is not divested of t h a t authority
by the fact t h a t it may not have acquired jurisdiction over
the accompanying claims for d a m a g e s because of lack of
specification thereof. Said claims for damages as to which
no a m o u n t s a r e s t a t e d may simply be expunged or t h e
69
court, on motion, may allow a reasonable t i m e for t h e

a m e n d m e n t of the complaint so as to allege t h e precise
a m o u n t of the damages and accept p a y m e n t of t h e fees
t h e r e f o r , p r o v i d e d said claims for d a m a g e s h a v e not
become time-barred (Tacay, et al. vs. Regional Trial Court
ofTagum, etc., et al, G.R. Nos. 88075-77, Dec. 20, 1989).
6. The a m o u n t of docket fees to be paid should be
c o m p u t e d on t h e b a s i s of t h e a m o u n t of t h e d a m a g e s
stated in t h e complaint. Where, subsequently, t h e judg-
m e n t a w a r d s a claim not specified in t h e p l e a d i n g or,
if specified, t h e same has been left for t h e d e t e r m i n a t i o n
of t h e c o u r t , t h e a d d i t i o n a l filing fee t h e r e f o r s h a l l
c o n s t i t u t e a l i e n on t h e j u d g m e n t . S u c h " a w a r d s of
claims not specified in t h e p l e a d i n g " refer only to
damages arising after the filing of t h e complaint or similar
p l e a d i n g . A c c o r d i n g l y , t h e a m o u n t o f a n y c l a i m for
d a m a g e s arising on or before t h e filing of t h e complaint
or any pleading should be specified. The exception
contemplated as to claims not specified or to claims which
a l t h o u g h specified a r e left to t h e d e t e r m i n a t i o n of t h e
court is limited only to d a m a g e s t h a t m a y a r i s e after
t h e filing of t h e complaint or similar p l e a d i n g since it
will not be possible for t h e claimant to specify or speculate
on t h e a m o u n t t h e r e o f (Ayala Corporation, et al vs.
Madayag, et al, G.R. No. 88421, Jan. 30, 1990).
7. It is well settled in our jurisdiction t h a t , unless

o t h e r w i s e provided by law or r e q u i r e d by public
i n t e r e s t , as in quo w a r r a n t o actions (see Note 3 u n d e r
Sec. 11, Rule 66), before bringing an action in or r e s o r t i n g
to t h e c o u r t s of justice, all r e m e d i e s of a d m i n i s t r a t i v e
c h a r a c t e r affecting or d e t e r m i n a t i v e of t h e controversy
at t h a t level should first be e x h a u s t e d by t h e aggrieved
p a r t y (Pestanas vs. Dyogi, L-25786, Feb. 27, 1978; Miguel
vs. Vda. de Reyes, 93 Phil. 542; Coloso vs. Board, L-5750,
April 30, 1950). It is likewise t r u e , however, t h a t t h e
doctrine of e x h a u s t i o n of a d m i n i s t r a t i v e remedies is not a
h a r d and fast rule.
70
This Title does not apply and has been disregarded

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

rules of procedure are mere tools designed to facilitate the
a t t a i n m e n t of justice. Thus, the liberal construction of
t h e s e Rules h a s b e e n allowed in t h e following c a s e s :
(1) w h e r e a rigid a p p l i c a t i o n will r e s u l t in m a n i f e s t
failure or miscarriage of justice; (2) where t h e i n t e r e s t of
s u b s t a n t i a l justice will be served; (3) where t h e resolution
of the motion is addressed solely to the sound and judicious
discretion of the court; and (4) where t h e injustice to t h e
adverse p a r t y is not c o m m e n s u r a t e with t h e degree of his
t h o u g h t l e s s n e s s in not complying w i t h t h e p r e s c r i b e d
procedure (Tan us. CA, et al., G.R. No. 130314, Sept. 22,
1998).
2. In fact, in line with the spirit and purpose of this

section, even t h e suspension of t h e rules may be justified
in t h e i n t e r e s t of fair play. As- early as t h e case of Vda.
de Ordonez us. Raymundo (63 Phil. 275), it was held t h a t
the court has the power to suspend the rules, or to
except a p a r t i c u l a r case from t h e i r operation, w h e n e v e r
the ends of justice so require.
J u r i s p r u d e n c e h a s laid down t h e r a n g e of r e a s o n s
which m a y provide justification for a c o u r t to r e s t r i c t
adherence to procedure, e n u m e r a t i n g grounds for giving
d u e course to an o t h e r w i s e objectionable a p p e a l by a
suspension of t h e enforcement of procedural rules, viz.:
(1) i n m a t t e r s o f life, l i b e r t y , h o n o r o r p r o p e r t y ;
(2) c o u n s e l ' s n e g l i g e n c e w i t h o u t a n y p a r t i c i p a t o r y
negligence on the p a r t of t h e client; (3) t h e existence of
special or compelling circumstances; (4) the evident merits
of t h e case; (5) a cause not entirely a t t r i b u t a b l e to the
72
fault or negligence of the p a r t y favored by t h e suspension

of the rules; (€) the lack of any showing t h a t t h e review
s o u g h t is merely frivolous a n d d i l a t o r y ; a n d (7) t h e
o t h e r p a r t y will n o t b e u n j u s t l y p r e j u d i c e d t h e r e b y
(Baylon vs. Fact-finding Intelligence Bureau, etc., et al.,
G.R. No. No. 150870, Dec. 11, 2002).
3. While the Rules are liberally construed, the

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

time in a peaceful though adversarial confrontation before
a judge whose authority litigants acknowledge. Public
o r d e r a n d o u r s y s t e m of j u s t i c e a r e well s e r v e d by a
c o n s c i e n t i o u s o b s e r v a n c e of t h e r u l e s of p r o c e d u r e ,
p a r t i c u l a r l y b y g o v e r n m e n t officials a n d a g e n c i e s "
(Kowloon House/Willy Ng vs. CA, et al., G.R. No. 140024,
June 18, 2003, quoted in United Pulp and Paper Co.,
Inc. vs. United Pulp and Paper Chapter, etc., G.R.
No. 141117, Mar. 24, 2004).
74
CIVIL A C T I O N S
ORDINARY CIVIL ACTIONS
RULE 2
C A U S E OF ACTION
S e c t i o n 1. Ordinary civil actions, basis of. —

Every ordinary civil action must be based on a
c a u s e o f a c t i o n , (n)
S e c . 2. Cause of action, defined. — A c a u s e of

action is the act or omission by w h i c h a party
v i o l a t e s a r i g h t of a n o t h e r , (n)
NOTES
1. See Note 2 of t h e Preliminary Considerations and

Notes 2 a n d 5 u n d e r Sec. 47, Rule 39.
2. A cause of action is the delict or wrongful act or

omission committed by t h e defendant in violation of the
primary right of t h e plaintiff. A single act or omission
can be violative of various rights at the same time but
where there is only one delict or wrong, there is b u t a
single cause of action regardless of the n u m b e r of rights
violated belonging to one person. Nevertheless, if only
one injury resulted from several wrongful acts, only one
cause of action arises. The singleness of a cause of action
lies in the singleness of the delict or wrong violating the
rights of one person (Joseph vs. Bautista, et al., L-41423,
Feb. 23, 1989).
S e c . 3. One suit for a single cause of action. — A

p a r t y m a y n o t i n s t i t u t e m o r e t h a n o n e s u i t for a
s i n g l e c a u s e o f a c t i o n . (3a)
76
S e c . 4. Splitting a single cause of action; effect of.

— If t w o or m o r e s u i t s are i n s t i t u t e d on t h e b a s i s of
the same cause of action, the filing of one or a
judgment upon the merits in any one is available
as a g r o u n d for t h e d i s m i s s a l of t h e o t h e r s . (4a)
NOTES
1. Splitting a cause of action is the act of dividing a

single cause of action, claim or demand into two or more
p a r t s , and bringing suit for one of s u c h p a r t s only,
intending to reserve the rest for a n o t h e r separate action.
The p u r p o s e s of t h e rule a r e to avoid h a r a s s m e n t a n d
vexation to the defendant and to obviate multiplicity of
suits.
•'. 2. W h e r e a single c a u s e of action h a s been split,

the remedy of t h e defendant is to move to dismiss u n d e r
Rule 1 6 o n t h e g r o u n d t h a t t h e r e i s a n o t h e r a c t i o n
p e n d i n g between t h e s a m e p a r t i e s for t h e s a m e cause,
or litis pendentia (Sec. lfej); or, if t h e first action h a s
a l r e a d y been finally t e r m i n a t e d , on t h e g r o u n d of res
judicata (Sec. IffJ).
3. T h u s , w h e r e t h e first,action was for recovery of

land, a n o t h e r action for the value of plaintiff s s h a r e in
the produce of said land is barred, as a single cause of
action was split into two suits (Jalandoni, et al. vs. Martir-
Guanzon, et al., 102 Phil. 859; cf. Pascua vs. Sideco, 24
Phil. 26). The s a m e doctrine applies w h e r e , in the action
to recover t h e land, t h e plaintiff sought to recover t h e
fruits a l r e a d y a p p r o p r i a t e d b y t h e d e f e n d a n t b u t not
the future fruits which may be realized thereon until the
possession of the land, was restored to him. He could
have done so by s u p p l e m e n t a l complaint in said action,
failing which he cannot i n s t i t u t e a n o t h e r action for t h a t
purpose in violation of t h e rule of res judicata (Bayang
vs. CA, et al., G.R. No. 53564, Feb. 27, 1987).
76
RULE 2 CAUSE OF ACTION SEC. 4
4. Where a contract is to be performed periodically,

as by i n s t a l l m e n t s , each failure to pay an i n s t a l l m e n t
constitutes a cause of action a n d can be t h e subject of a
s e p a r a t e suit as t h e i n s t a l l m e n t falls due, or it can be
included in the p e n d i n g s u i t by s u p p l e m e n t a l pleading.
However, if at the time of the bringing of suit, several
installments are already due, all must be included as
integrating a single cause of action, otherwise those not
included will be barred (Larena vs. Villanueva, 53 Phil.
923).
5. W i t h a l , e v e n if t h e c o n t r a c t is divisible in its
performance a n d t h e future periodic deliveries a r e not
yet due, b u t t h e obligor h a s already manifested his refusal
to comply w i t h his future periodic obligations, "the con-
tract is entire and the breach total," hence t h e r e can only
be one action for damages (Blossom & Co. vs. Manila Gas
Corporation, 55 Phil. 226).
6. N o n - p a y m e n t of a mortgage loan cannot be split

into two actions, one for p a y m e n t of t h e debt a n d t h e
other for foreclosure of t h e m o r t g a g e , as t h e r e is only
one cause of action (Quiogue, et al. vs. Bautista, et al.,
L-13159, Feb. 28, 1962); b u t an action for collection of a
mortgage loan does not b a r a n o t h e r for rescission of the
mortgage if such rescission is based on the non-compliance
by t h e m o r t g a g o r w i t h c e r t a i n o t h e r conditions of t h e
m o r t g a g e c o n t r a c t (Enriquez, et al. vs. Ramos, et al.,
L-16797, Feb. 27, 1963).
7. Where the plaintiff filed the first action for forcible
entry in t h e belief and on t h e allegation t h a t the fence
c o n s t r u c t e d by t h e d e f e n d a n t i n t r u d e d upon only one
lot, but, after t h e relocation survey, he discovered t h a t
the other portion of t h e same fence extended to a n o t h e r
lot and as a consequence of which he filed a n o t h e r action
for forcible entry upon t h a t l a t t e r lot, the S u p r e m e Court,
while holding that technically t h e r e was a splitting of a
77
single cause of action since the alleged forcible entry

constituted only one act, nevertheless s u s t a i n e d the
order of the lower court denying defendant's motion to
dismiss the complaint on the ground of litis pendentia, it
appearing that the first action had not yet been tried at
the time the second action was filed in the same court,
hence the two cases could be tried together as one, or the
second complaint could be treated as an amendment of
the first (Tarnate us. Garcia, et al., L-26266, Dec. 29,
1972).
S e c . 5. Joinder of causes of action. — A p a r t y m a y

in one pleading assert, in the alternative or
otherwise, as many causes of action as he may have
against an opposing party, subject to the following
conditions:
(a) T h e p a r t y j o i n i n g t h e c a u s e s o f a c t i o n s h a l l
comply with the rules on joinder of parties;
(b) T h e j o i n d e r s h a l l n o t i n c l u d e s p e c i a l c i v i l
actions governed by special rules;
(c) W h e r e t h e c a u s e s o f a c t i o n a r e b e t w e e n t h e
same parties but pertain to different v e n u e s or
jurisdictions, the joinder may be allowed in the
R e g i o n a l Trial C o u r t p r o v i d e d o n e o f t h e c a u s e s o f
a c t i o n falls w i t h i n t h e j u r i s d i c t i o n of said court
and the venue lies therein; and -1
(d) W h e r e t h e c l a i m s i n a l l t h e c a u s e s o f
a c t i o n a r e p r i n c i p a l l y for r e c o v e r y o f m o n e y t h e
aggregateâmount claimed shall be the test of
j u r i s d i c t i o n . (5a)
NOTES
1. The joinder of causes of action in one complaint

promotes the policy on avoiding multiplicity of suits.
The rule in Sec. 5, however, is purely permissive and the
78
plaintiff can always file s e p a r a t e actions for each cause

of action (Baldovir vs. Sarte, 36 Phil. 550).
2. P a r . (a) of t h i s section requires t h a t t h e joinder

of causes of action shall comply with t h e rule on joinder
of p a r t i e s . T h u s , in r e l a t i o n to Sec. 6 of Rule 3, it is
n e c e s s a r y t h a t t h e r i g h t of relief from said c a u s e s of
action should arise out of t h e same t r a n s a c t i o n or series
of t r a n s a c t i o n s , and a question of law and fact common
to all t h e plaintiffs or defendants may arise in the action.
3. U n d e r P a r . (b), only causes of action in ordinary

civil actions may be joined, obviously because they a r e
subject to t h e s a m e rules. Necessarily, therefore, special
civil actions or actions governed by special rules should
not be joined w i t h o r d i n a r y civil actions to avoid con-
fusion in t h e conduct of t h e proceedings as well as in the
d e t e r m i n a t i o n of t h e presence of t h e requisite elements
of each p a r t i c u l a r cause of action. In fact, in the special
civil action of declaratory relief (Rule 63), the concept of
a cause of action in ordinary civil actions does not apply.
Note should be t a k e n , however, of Sec. 4 of Rule 1
which provides t h a t t h e s e Rules shall not apply, inter
alia, to election cases in t h e r e g u l a r courts (see Sec. 2[2],
Art. IXC, 1987 Constitution). T h u s , unless the rules of
t h e e l e c t o r a l t r i b u n a l o r body provide o t h e r w i s e , t h e
prohibition a g a i n s t joining in one action t h e r e i n a cause
of action for quo w a r r a n t o by reason of the ineligibility
of t h e d e f e n d a n t c a n d i d a t e ( w h i c h is a s p e c i a l civil
action) a n d one for an election protest due to electoral
irregularities, should not apply and both causes of action
may be adjudicated in a single case, especially in view of
the need for speedy d e t e r m i n a t i o n of the title to a public
office.
4. P a r s , (c) and (d) determine which court will have

jurisdiction over t h e action w h e r e i n s e v e r a l causes of
action have been joined. Unlike t h e former Rule, t h e
79
aggregate or totality rule applies only where t h e claims

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

of action which a r e joined accrue in favor of t h e s a m e
plaintiff/s and against t h e same defendant/s and t h a t no
misjoinder of p a r t i e s is involved. The jurisdictional issue,
i.e., w h e t h e r t h e action shall be filed in t h e inferior court
80
or in the Regional Trial Court, is determined by p a r a g r a p h s

(c) and (d).
7. Formerly, t h e rule was t h a t although t h e causes

of a c t i o n a r e for s u m s of m o n e y o w i n g to d i f f e r e n t
persons who a r e m e m b e r s of a labor union, but t h e same
are joined in a single complaint filed by said union as
a r e p r e s e n t a t i v e p a r t y p u r s u a n t to Sec. 3 of Rule 3,
jurisdiction shall be d e t e r m i n e d by t h e aggregate a m o u n t
of the d e m a n d s (Liberty Mfg. Workers Union vs. CFI of
Bulacan, et al., L-35252, Nov. 29, 1972). Cases of t h i s
n a t u r e a r e now governed by t h e Labor Code.
8. Before t h e i m p l e m e n t a t i o n of B.P. Blg. 129, it

was held t h a t w h e r e t h e plaintiff is u n c e r t a i n as a g a i n s t
whom to proceed for recovery on t h e loss of goods shipped
to him a n d sues on a joinder of causes of action a g a i n s t
the shipper or a r r a s t r e operator as alternative defendants,
the former on an a d m i r a l t y action and t h e l a t t e r on an
ordinary claim for a s u m of money, t h e joinder of causes
o f a c t i o n i s p r o p e r s i n c e t h e y a r o s e from t h e s a m e
transaction. However, since one cause of action
(admiralty) was within t h e jurisdiction of the Court of First
Instance, even if t h e a m o u n t involved in t h e claim for a
sum of money was within t h e jurisdiction of the inferior
court, t h e action m u s t be filed and tried in t h e Court of
First I n s t a n c e , p u r s u a n t to Rule 2, Sec. 5, second
paragraph (Insurance Company of North America vs.
Warner, Barnes & Co., Ltd., et al., L-24108, Oct. 31, 1967;
Insurance Company of North America vs. U.S. Lines Co.,
L-21839, April 30, 1968). The s u b s e q u e n t dismissal of
the a d m i r a l t y case a g a i n s t one of t h e a l t e r n a t i v e
defendants did not oust said court of jurisdiction over the
d a m a g e s u i t even if t h e claim w a s less t h a n t h e t h e n
jurisdictional amount (Insurance Company of North
America vs. U.S. Lines Co., supra).
However, since u n d e r Sec. 19 of B.P. Blg. 129 t h e
inferior courts were g r a n t e d jurisdiction over admiralty
81
actions, as well as ordinary civil actions, where t h e claim

does not exceed P20,000, the situations in t h e foregoing
cases were eliminated because the jurisdictional
a m o u n t in both c a u s e s of action being t h e s a m e , said
a m o u n t is determinative of w h e t h e r t h a t action should be
filed in t h e inferior courts or in the Regional Trial Court.
The a m e n d m e n t of Sec. 19, B.P. Blg. 129 by Sec. 1
of R.A. 7691, as e a r l i e r indicated, does not affect t h i s
rule on admiralty and maritime cases since t h a t
a m e n d m e n t merely consisted of increasing the
jurisdictional a m o u n t for said cases, and also for ordinary
civil actions for a s u m of money, to claims exceeding
PIOO.OOO, or in M e t r o M a n i l a , e x c e e d i n g P 2 0 0 . 0 0 0 ,
exclusive of interest, damages of whatever kind, attorney's
fees, litigation expenses, and costs.
S e c . 6. Misjoinder of causes of action. — M i s j o i n d e r

o f c a u s e s o f a c t i o n i s n o t a g r o u n d for d i s m i s s a l o f
an action. A misjoined cause of action may, on
motion of a party or on the initiative of the court,
b e s e v e r e d a n d p r o c e e d e d w i t h s e p a r a t e l y , (n)
NOTES
1. In case of misjoinder of causes of action, t h e cause

of action erroneously joined need only be s e p a r a t e d a n d
dismissed, w i t h o u t affecting t h e action w i t h r e g a r d to t h e
other cause or c a u s e s o£ action. Misjoinder of causes of
action, like misjoinder of p a r t i e s , is not a g r o u n d for
dismissal of an action. The p a r t y misjoined shall only be
dropped by order of t h e court sua sponte or on motion,
and any claim against a p a r t y may be severed and
proceeded with s e p a r a t e l y (Sec. 11, Rule 3).
2. Unlike t h e case of non-joinder of p a r t i e s which

is specifically provided for a n d r e g u l a t e d by t h e Rules
(Secs. 9 to 11, Rule 3), t h e r e is no provision on or sanction
against non-joinder of s e p a r a t e causes of action since a
82
RULE 2 P A R T I E S TO CIVIL A C T I O N S SEC. 6
plaintiff needs only a single cause of action to maintain

an action (Sec. 1, Rule 2). Joinder of causes of action
which accrued in favor of a party is only a permissive
procedure, h e n c e t h e p a r t y may i n s t i t u t e a s many
actions as he has causes of action, without prejudice to
the p r o v i s i o n s of Sec. 1 of Rule 31 on joint trial or
consolidation of actions.
83
RULE 3
P A R T I E S TO CIVIL A C T I O N S
S e c t i o n 1. Who may be parties; plaintiff and defen-

dant. — O n l y n a t u r a l o r j u r i d i c a l p e r s o n s , o r
e n t i t i e s a u t h o r i z e d b y law m a y b e p a r t i e s i n a c i v i l
action. The term "plaintiff may refer to the
claiming party, the counter-claimant, the cross-
c l a i m a n t , o r t h e t h i r d ( f o u r t h , e t c . ) - p a r t y plaintiff.
The term "defendant" may refer to the original
d e f e n d i n g party, the defendant in a counterclaim,
the cross-defendant, or the third (fourth, etc.)-
p a r t y d e f e n d a n t , (a)
NOTES
1. As to who a r e juridical persons w i t h capacity to

sue, see Art. 44, Civil Code. The entities authorized by
law to be parties to a suit include the estate of a deceased
person (Limjoco vs. Intestate Estate of Fragante, 8 Phil.
776; Estate of Mota vs. Concepcion, 56 Phil. 712),
a p o l i t i c a l p a r t y i n c o r p o r a t e d u n d e r Act 1459 (now,
B.P. Blg. 68, Corporation Code) and a r e g i s t e r e d labor
u n i o n , u n d e r S e c . 2 4 ( d ) , R.A. 8 7 5 ( n o w , Sec. 243,
P.D. 442, Labor Code), with respect to its property. The
Roman Catholic Church h a s a juridical p e r s o n a l i t y
(Barlin vs. Ramirez, 7 Phil. 47).
2. Although t h e action was b r o u g h t a g a i n s t t h e

"Broadway T h e a t r e " which is not a juridical person, b u t
the lessee thereof filed an a n s w e r a n d l a t e r e n t e r e d into
a compromise a g r e e m e n t a d m i t t i n g liability and p u r s u a n t
to which j u d g m e n t was rendered, t h e procedural defect
w a s c u r e d . The w r i t of execution c a n n o t be enforced
a g a i n s t t h e t h e a t r e b u t a g a i n s t t h e l e s s e e (Oscar
Ventanilla Enterprises Corp. vs. Lazaro, G.R. No. 53856,
Aug. 21, 1980).
RULE 3 PARTIES TO CIVIL A C T I O N S SEC. 2
3. Sec. 1 of t h i s Rule provides t h a t only n a t u r a l or

juridical persons may be p a r t i e s in a civil action and, in
this case, t h e e d u c a t i o n a l i n s t i t u t i o n failed to comply
with its obligation to incorporate u n d e r t h e Corporation
Law after its recognition by t h e Government. However,
having contracted with its t e a c h e r for 32 years u n d e r t h e
r e p r e s e n t a t i o n t h a t it was possessed of juridical person-
ality to do so, it is now e s t o p p e d from d e n y i n g s u c h
p e r s o n a l i t y to defeat h e r claim a g a i n s t it (Chiang Kai
Shek School us. CA, et al., G.R. No. 58028, April 18, 1989).
4. U n d e r Sec. 15 of t h i s Rule, an entity, which is not

registered as a juridical person and, therefore, without
the requisite personality required of p a r t i e s to a suit, may
at least be sued as a defendant in t h e first instance so
t h a t t h e m e m b e r s t h e r e o f s h a l l be disclosed by being
required to be individually n a m e d in t h e a n s w e r . This
exception is dictated by t h e need to identify its m e m b e r s
since it is from t h e m t h a t t h e plaintiff may seek relief on
his claim.
5. N o n - r e s i d e n t aliens living abroad may m a i n t a i n

personal actions a g a i n s t Philippine residents in Philippine
courts, e v e n if a c o u n t e r c l a i m is b r o u g h t a g a i n s t said
plaintiffs (Dilweg us. Philip, L-19596, Oct. 30, 1964).
S e c . 2. Parties in interest. — A**e*L p a r t y in

interest i* t k e party w h o stands to be benefited or
injured by-the judgment in the suit, or the party
entitled to t h e avails of t h e suit. Unless otherwise
authorized by law or t h e s e Rules, every action must
b e p r o s e c u t e d o r d e f e n d e d i n t h e n a m e o f t h e real
party in i n t e r e s t . (2a)
NOTES
1. A real p a r t y in i n t e r e s t is the p a r t y who s t a n d s to

be benefited or injured by t h e j u d g m e n t in t h e suit, or
the p a r t y entitled to t h e avails of the suit (Salonga vs.
c 1
-ire* r • * '
< (85
Warner, Barnes & Co., Ltd., 88 Phil. 125). The term

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

t h e suit is now a m a n d a t o r y r e q u i r e m e n t , a n d not a dis-
cretionary procedure as it was in t h e former section of
this Rule. This a m e n d e d section e n u m e r a t e s t h e s a m e
exceptions to t h e rule t h a t t h e action shall be brought in
86
RULE 3 PARTIES TO CIVIL ACTIONS SEC. 3
the n a m e of t h e r e a l p a r t y in i n t e r e s t . The p h r a s e "party

authorized by law or t h e s e Rules," includes the
r e p r e s e n t a t i v e of t h e o w n e r in e j e c t m e n t p r o c e e d i n g s
(Sec. 1, Rule 70), a receiver (Sec. 6, Rule 59) a n d t h e
a s s i g n e e of a d e b t o r in i n s o l v e n c y p r o c e e d i n g s . T h e
judgment creditor may sue t h e debtor of a j u d g m e n t debtor
if t h e former denies t h e i n d e b t e d n e s s (Sec. 43, Rule 39).
Other instances u n d e r t h e s u b s t a n t i v e law a r e found in
Arts. 487, 1311, 1497, 1664, 2103 and 2118 of t h e Civil
Code.
2. A labor union, as t h e duly recognized b a r g a i n i n g

unit of its m e m b e r s , can file a r e p r e s e n t a t i v e suit in t h e i r
behalf u n d e r t h i s section which a u t h o r i z e s a p a r t y with
whom or in whose n a m e a c o n t r a c t h a s been m a d e for
the benefit of a n o t h e r , to sue or be sued without joining
the p a r t y for whose benefit t h e action is p r e s e n t e d or
defended (Liberty Mfg. Workers Union vs. CFI of Bulacan,
et al., supra; cf. National Brewery, etc. Labor Union of
the Phil. vs. San Miguel Brewery, Inc., L-19017, Dec. 7,
1963). This r e p r e s e n t a t i v e capacity of labor unions is
recognized u n d e r t h e Labor Code (Sec. 243) but, generally,
labor cases a r e not originally cognizable by t h e r e g u l a r
courts.
3. A*corporation c a n n o t m a i n t a i n an a c t i o n to
recover property belonging to its stockholders as it has
no interest therein, it having a separate personality and
the properties not having been transferred to it (Sulo
ng Bayan, Inc. vs. Gregorio Araneta, Inc., et al., L-31061,
Aug. 17, 1976).
4. U n d e r t h e p r e s e n t Rules, p a r t i e s in i n t e r e s t may
be classified a n d defined as follows:
a. Indispensable parties: Those without whom no
final d e t e r m i n a t i o n can be had of an action (Sec. 7).
b. Necessary parties: Those who a r e not indispen-
sable but ought to be parties if complete relief is to be
87
accorded as to those already parties, or for a complete

determination or settlement of t h e claim subject of t h e
action (Sec. 8).
c. Representative parties: Those referred to in Sec.
3 of t h i s Rule.
d. Pro forma parties: Those who are required to be
joined as co-parties in suits by or against a n o t h e r p a r t y
as may be provided by t h e applicable s u b s t a n t i v e law
or procedural rule (Sec. 4).
e. Quasi parties: Those in whose behalf a class or
r e p r e s e n t a t i v e suit is brought (Sec. 17).
5. The 1940 Rules of Court provided for t h e t e r m
" n e c e s s a r y p a r t i e s " b u t t h i s w a s c h a n g e d t o "proper"
p a r t i e s in t h e 1964 Rules of Court. The p r e s e n t Rules
r e v e r t e d t o t h e o r i g i n a l n o m e n c l a t u r e a s b e i n g more
terminologically accurate.
In American law on the classification of p a r t i e s , from
which we derived and patterned our concepts with
a p p r o p r i a t e modifications, formal or proper p a r t i e s a r e
those who have no i n t e r e s t in t h e controversy between
the immediate litigants b u t have an i n t e r e s t in t h e sub-
j e c t - m a t t e r which m a y b e c o n v e n i e n t l y s e t t l e d i n t h e
suit, a n d thereby p r e v e n t f u r t h e r litigation; they may be
made p a r t i e s or not, at t h e option of t h e c o m p l a i n a n t .
Necessary p a r t i e s a r e those p a r t i e s who have such an
i n t e r e s t in t h e s u b j e c t - m a t t e r of a s u i t in e q u i t y , or
whose rights a r e so involved in the controversy, t h a t no
complete and effective decree can be made, disposing of
t h e m a t t e r in issue and dispensing complete justice, un-
less they a r e before t h e court in such a m a n n e r as to
entitle t h e m to be h e a r d in vindication or protection of
their interests (see Black's Law Dictionary, 4th ed.,
pp. 1275-1276; citations omitted).
The classification t h e r e i n also s p e a k s of n o m i n a l
p a r t i e s as those who a r e joined as plaintiffs or defendants,
88
not because they have any r e a l i n t e r e s t in t h e subject

m a t t e r o r b e c a u s e a n y relief i s d e m a n d e d a s a g a i n s t
them, but merely because t h e technical rules of pleadings
require t h e i r presence on t h e record. This would roughly
c o r r e s p o n d to o u r c o n c e p t of a n d r u l e on pro forma
p a r t i e s w h e r e i n t h e joinder of spouses is required, or in
c e r t i o r a r i a c t i o n s w h e r e i n t h e c o u r t o r agency whose
adjudication is c h a l l e n g e d is i m p l e a d e d as t h e public
respondent, with the prevailing party as the private
respondent.
6. In t h e p r e s e n t definition of a necessary p a r t y , t h e
a d d i t i o n of t h e a l t e r n a t i v e c l a u s e "or for a c o m p l e t e
d e t e r m i n a t i o n or s e t t l e m e n t of t h e claim subject of the
action" is i n t e n d e d to m a k e t h e definition of necessary
p a r t i e s more comprehensive a n d complete. T h u s , if the
plaintiff creditor s u e s only one of t h e two joint debtors,
the j u d g m e n t t h e r e i n would accord complete relief as
between him a n d said defendant. However, t h e co-debtor
who was not impleaded is definitely a necessary p a r t y
since a j u d g m e n t in t h a t action with respect to his own
joint liability is necessary for a complete s e t t l e m e n t of
the debt in favor of t h e plaintiff. Without such alterna-
tive clause, the u n i m p l e a d e d debtor would not be
considered as a necessary p a r t y and t h e procedure and
sanctions in Sec. 9 of t h i s Rule could not be applied to
him.
7. P a r t i e s who were not initially and formally

impleaded as original p a r t i e s to t h e case, but l a t e r bound
themselves to comply w i t h t h e t e r m s of a j u d g m e n t on
compromise r e n d e r e d t h e r e i n may also be considered as
quasi p a r t i e s in said case (Rodriguez, et al. vs. Alikpala,
L-38314, June 25, 1974).
S e c . 4. Spouses as parties. — H u s b a n d a n d w i f e
shall s u e o* be s u e d jointly, e x c e p t as provided by
law. (4a)
89
NOTE
1. The provision hereon in t h e 1964 Rules of Court

was merely a reproduction of Art. 113 of t h e Civil Code.
This is an i l l u s t r a t i o n of joinder of pro forma p a r t i e s
required by the Rules. The propriety of suits by or against
the spouses should now t a k e into account t h e p e r t i n e n t
provisions of t h e Family Code.
S e c . 5. Minors or incompetent persons. — A m i n o r

or a person alleged to be incompetent, m a y sue or
be sued with the assistance of his father, mother,
g u a r d i a n , or if he h a s n o n e , a g u a r d i a n ad litem.
(5a) r
NOTES
T
- -• . r -
1. U n d e r t h e 1964 Rules, a distinction w a s made
between unemancipated and emancipated minors. An
u n e m a n c i p a t e d minor could sue or to be sued "through"
h i s p a r e n t o r g u a r d i a n , t h a t is, t h e a c t i o n h a d t o b e
brought in the name of or against such p a r e n t or
guardian with the designation that he was bringing
the action or being sued in t h a t capacity. In t h e case of
e m a n c i p a t e d minors, they could sue or be sued "with t h e
assistance" of t h e p a r e n t or g u a r d i a n . The action was in
the n a m e of or a g a i n s t t h e minor, w i t h an indication t h a t
he was being assisted t h e r e i n by his p a r e n t or g u a r d i a n .
Note t h a t 18 y e a r s is now t h e age of majority (R.A. 6809)
and for contracting m a r r i a g e (Art. 5, Family Code).
2. Also, u n d e r t h e former Rules, it w a s necessary

t h a t to sue or be sued in t h e cases provided by law, t h e
incompetent m u s t have been judicially declared as such,
and he could t h u s sue or be sued only t h r o u g h his p a r e n t
or g u a r d i a n . U n d e r t h e p r e s e n t revision, t h e suit can be
brought by or a g a i n s t him personally b u t w i t h t h e assis-
tance of his p a r e n t s or his g u a r d i a n . It is sufficient t h a t
90
his i n c o m p e t e n c y be alleged in t h e c o r r e s p o n d i n g
pleadings a n d t h e t r i a l court may p a s s upon t h e t r u t h a n d
effects thereof.
S e c . 6. Permissive joinder of parties.—All p e r s o n s

in whom or against w h o m any right to relief in
respect to or arising out of the same transaction
or series of transactions is alleged to exist whether
jointly, severally, or in the alternative, may, except as
otherwise provided in t h e s e Rules, join as plaintiffs
or be joined as defendants in one complaint, where
any q u e s t i o n of law or fact c o m m o n to all s u c h
p l a i n t i f f s o r t o all s u c h d e f e n d a n t s m a y a r i s e i n t h e
action; but the court may make such orders as may
be j u s t to p r e v e n t any plaintiff or d e f e n d a n t from
b e i n g e m b a r r a s s e d or put to expense in connection
with any proceedings in which he may have no
i n t e r e s t . (6)
NOTES
1. In t h e case of indispensable p a r t i e s and necessary

parties, t h e i r joinder in t h e action is compulsory (Secs. 7
and 8). This section e n u n c i a t e s t h e rule on permissive
joinder of p a r t i e s , t h a t is, t h e y can e i t h e r he joined in
one single complaint or may themselves m a i n t a i n or be
sued in s e p a r a t e s u i t s . T h i s rule is also applicable to
counterclaims (Go, et al. vs. Go, et al., 95 Phil. 378).
2. Permissive joinder of p a r t i e s requires t h a t :

a. The r i g h t to relief arises out of t h e same t r a n s -
action or series of t r a n s a c t i o n s ;
b. T h e r e is a question of law or fact common to all
the plaintiffs or defendants; and
c. Such joinder is not otherwise proscribed by the
provisions of t h e Rules on jurisdiction and venue.
91
"Series of transactions" means separate dealings with

the parties but all of which dealings are directly connected
with the same type of subject-matter of the suit. The
third r e q u i r e m e n t is contemplated by the proviso "except
as otherwise provided in these Rules" stated in this section.
Formerly, it was held t h a t several employees, hired
u n d e r s e p a r a t e contracts, could join in a suit for m i n i m u m
wages and non-payment thereof against t h e i r employer,
their contracts being a "series of t r a n s a c t i o n s " and t h e r e
is a common question of fact and law applicable to all of
t h e m (Abrasaldo, et al. vs. Cia. Maritima, 104 Phil. 1051
fUnrep.J). The same rule applied where several employees
were jointly dismissed and not paid by t h e i r employer
(International Colleges, Inc. vs. Argonza, 90 Phil. 470).
The foregoing situations are now governed by t h e Labor
Code, but t h e doctrines in said cases a r e still applicable to
ordinary claims not involving labor cases or employer-
e m p l o y e e r e l a t i o n s h i p s a s long a s t h e r e q u i s i t e s for
permissive joinder of p a r t i e s are p r e s e n t .
3. Where a complaint contained two causes of action,

each for a s u m of money less t h a n P20,000 (which was
t h e n t h e m a x i m u m o f t h e j u r i s d i c t i o n a l a m o u n t for
cases cognizable by t h e municipal t r i a l courts) owed by
t h e plaintiff to a different d e f e n d a n t a n d a r i s i n g from
different a n d independent transactions, a l t h o u g h t h e
total of both claims exceeded P20,000, t h e Regional Trial
C o u r t h a d n o j u r i s d i c t i o n t h e n since t h e t o t a l i t y r u l e
involving different p a r t i e s , in Sec. 33(1) of B.P. Blg. 129
and Sec. 11 of the I n t e r i m Rules, is subject to t h e
r e q u i r e m e n t s in t h i s section, one of which is t h a t t h e
right to relief arises out of t h e s a m e t r a n s a c t i o n or series
of t r a n s a c t i o n s (Flores vs. Mallare-Philipps, et al.,
G.R. No. 66620, Sept. 24, 1986).
y
S e c . 7. Compulsory joinder of indispensable parties.
— Parties in interest w i t h o u t w h o m no final
92
RULE 3 P A R T I E S TO CIVIL A C T I O N S SECS. 7-8
determination can be had of an action shall be joined

e i t h e r a s p l a i n t i f f s o r d e f e n d a n t s . (7)
S e c . 8. Necessary party. — A n e c e s s a r y p a r t y is
one w h o is not indispensable but who ought to be
joined as a party if c o m p l e t e relief is to be accorded
as to t h o s e a l r e a d y p a r t i e s , or for a c o m p l e t e
determination or settlement of the claim subject of
t h e a c t i o n . (8a)
NOTES
1. In t h e case of indispensable p a r t i e s , t h e action

c a n n o t p r o c e e d u n l e s s t h e y a r e j o i n e d (Borlasa vs.
Polistico, 47 Phil. 345; Cortez vs. Avila, 101 Phil. 705),
w h e r e a s t h e action can proceed even in t h e absence of
some necessary p a r t i e s . If an indispensable p a r t y is not
impleaded, any j u d g m e n t would have no effectiveness;
w h e r e a s , e v e n if a n e c e s s a r y p a r t y is not included in
the suit, t h e case may be finally d e t e r m i n e d in court, but
the j u d g m e n t t h e r e i n will not resolve the whole
controversy.
2. Indispensable parties are those with such an

i n t e r e s t in t h e c o n t r o v e r s y t h a t a final decree would
necessarily affect t h e i r r i g h t s , so t h a t t h e court cannot
proceed w i t h o u t t h e i r presence. Necessary p a r t i e s a r e
those whose presence is necessary to adjudicate the whole
controversy b u t whose i n t e r e s t s are so far separable t h a t
a final decree c a n be m a d e in t h e i r a b s e n c e w i t h o u t
affecting them (Wyoga Gas & Oil Corp. vs. Schrack,
1 Fed. Rules Service, 292, cited in 1 Moran 191, 1979 Ed.).
3. Where, in an action to a n n u l the sale of land made

by the defendant b a n k to its co-defendant spouses, the
action w a s d i s m i s s e d w i t h r e s p e c t t o s a i d d e f e n d a n t
spouses, t h e case m u s t also be dismissed as against the
defendant bank. The defendant spouses are indispensable
93
parties, hence having been discharged by t h e t r i a l court,

said court is no longer in a position to g r a n t t h e relief
sought by the plaintiff (Pillado us. Francisco, 105 Phil.
1254 fUnrep.J). On the other hand, where t h e action was
dismissed against t h e defendants who, before t h e filing
of said action, had sold t h e i r interests in t h e land subject
of the suit to their co-defendant, the said dismissal
against t h e former, who are only necessary p a r t i e s to t h e
suit, will not b a r the action from proceeding a g a i n s t t h e
latter as the remaining defendant. Said remaining
d e f e n d a n t h a v i n g been vested w i t h absolute title over
t h e subject property, t h e t r i a l court is in a position to
g r a n t t h e relief sought if proved by t h e plaintiffs (Seno,
et al. us. Mangubat, et al., L-44339, Dec. 2, 1987).
S e c . 9. Non-joinder of necessary parties to be pleaded.

— W h e n e v e r in any p l e a d i n g in w h i c h a c l a i m is
asserted a necessary party is not joined, the pleader
s h a l l s e t forth h i s n a m e , i f k n o w n , a n d s h a l l s t a t e
w h y h e i s o m i t t e d . S h o u l d t h e c o u r t find t h e r e a s o n
for t h e o m i s s i o n u n m e r i t o r i o u s , i t m a y o r d e r t h e
inclusion of the omitted necessary party if
jurisdiction over his person may be obtained.
T h e f a i l u r e t o c o m p l y w i t h t h e o r d e r for h i s
inclusion, without justifiable cause, shall be deemed
a waiver of the claim against such party.
The non-inclusion of a necessary party d o e s not
prevent the court from p r o c e e d i n g in the action,
and the judgment rendered therein shall be with-
out prejudice to the rights of s u c h necessary party.
(8a, 9a)
NOTES
1. T h i s r e v i s e d provision r e i t e r a t e s t h e need for

impleading all necessary p a r t i e s in order t h a t t h e claims
involved in t h e action m a y be completely d e t e r m i n e d
94
t h e r e i n a n d t h e r e b y avoid multiplicity of s u i t s . The non-

inclusion of t h e necessary p a r t y may be excused only on
meritorious grounds, a b s e n t which t h e court shall order
him to be impleaded if jurisdiction over his person can
be obtained, subject to t h e sanction in t h e second p a r a -
graph of t h i s section. If his inclusion cannot, however,
be effected for valid reasons, u n d e r t h e t h i r d p a r a g r a p h
of t h i s section t h e action may proceed b u t t h e j u d g m e n t
t h e r e i n shall not prejudice t h e r i g h t s of t h a t necessary
party. Logically considered, therefore, n e i t h e r shall his
rights be prejudiced if his non-inclusion in t h e action in
the first place w a s due to a valid cause.
2. U n d e r t h e circumstances contemplated in the first

paragraph, the court shall order the inclusion of the
necessary p a r t y , t h a t is, t h e plaintiff shall be ordered to
file a n a m e n d e d c o m p l a i n t i m p l e a d i n g t h e n e c e s s a r y
party t h e r e i n as a co-defendant. Where t h e plaintiff un-
justifiedly fails or refuses to do so, t h e sanction in t h e
second p a r a g r a p h comes into play a n d t h e plaintiff shall
be deemed to have waived his claim a g a i n s t said p a r t y .
The s a m e rule applies to any pleading a s s e r t i n g a claim
against a necessary p a r t y .
3. It is t r u e t h a t u n d e r Sec. 3 of Rule 17, w h e r e the
plaintiff fails w i t h o u t justifiable cause to comply with an
o r d e r of t h e c o u r t , h i s c o m p l a i n t m a y be d i s m i s s e d .
However, such dismissal shall not be ordered w h e r e t h e
plaintiff fails to comply w i t h t h e order of t h e court for
the joinder of t h e necessary p a r t y u n d e r this Rule, in line
with Sec. 11 thereof which provides t h a t non-joinder of
parties should not be a ground for dismissal of an action.
Thus, t h e rule merely declaring the waiver of plaintiffs
claim a g a i n s t t h e necessary p a r t y whose non-inclusion
was unjustified, as provided in t h e second p a r a g r a p h of
this section, is in effect an exception to t h e provision on
penalties imposed on a disobedient p a r t y u n d e r Sec. 3
of Rule 17 which would have entailed t h e dismissal of the
complaint itself.
95
RULE 3 REMEDIAL LAW C O M P E N D I U M SECS. 10-11
S e c . 10. Unwilling co-plaintiff. — If t h e c o n s e n t

of any party w h o should be joined as plaintiff can
not be obtained, he may be made a defendant and
the reason therefor shall be stated in the complaint.
(10)
S e c . 11. Misjoinder and non-joinder of parties. —

Neither misjoinder nor non-joinder of partiee is
g r o u n d for d i s m i s s a l o f a n a c t i o n . P a r t i e s m a y b e
dropped or added by order of the court on motion of
a n y p a r t y o r o n its o w n i n i t i a t i v e a t a n y s t a g e o f
the action and on such terms as are just. Any claim
against a misjoined party may be severed and
p r o c e e d e d w i t h s e p a r a t e l y . (11a)
NOTES
1. Objections to defects in t h e p a r t i e s impleaded

should be made at t h e earliest opportunity, t h e moment
such defects become a p p a r e n t , by a motion to s t r i k e t h e
n a m e s of t h e p a r t i e s impleaded. If t h e r e is misjoinder, a
s e p a r a t e action should be brought against the party
misjoined. Objection to misjoinder cannot be raised for
the first time on appeal (Garcia vs. Chua, [CA], 50 O.G.
No. 2, 653).
2. Non-joinder does not warrant dismissal b u t the

court should order the inclusion of the necessary p a r t y
(see Sanchez vs. CFI, 40 Phil. 155). But if t h e case is
erroneously dismissed on this ground without stating that
it is without prejudice, and plaintiff did not appeal, such
dismissal bars the filing of another action on the same
cause (Rivera vs. Luciano, L-20844, Aug. 14, 1965).
3. Although both misjoinder of p a r t i e s a n d causes

of action a r e not g r o u n d s for dismissal, they s t a n d on
different p r e m i s e s as t h e r e can be misjoinder of p a r t i e s
even if t h e r e is only one cause of action common to them,
96
RULE 3 PARTIES TO CIVIL A C T I O N S S E C . 12
and t h e r e can be misjoinder of causes of action even if

there is only one plaintiff.
4. In case of misjoinder of causes of action, the one

which h a s been misjoined need merely be severed and
proceeded with separately, as provided in Sec. 6, Rule 2.
Along t h e s a m e r a t i o n a l e , Sec. 2 of Rule 31 allows t h e
court, in furtherance of convenience or to avoid prejudice,
to o r d e r a s e v e r a n c e a n d s e p a r a t e t r i a l of any claim,
cross-claim, counterclaim, or t h i r d - p a r t y complaint, or of
any s e p a r a t e i s s u e or of a n y n u m b e r of claims, cross-
claims, counterclaims, t h i r d - p a r t y complaints or issues.
5. See Note 2 u n d e r Sec. 2, Rule 17.
S e c . 12. Class suit. — W h e n t h e s u b j e c t m a t t e r

of the controversy is one of common or general
interest to many persons so numerous that it is
impracticable to join all as parties, a n u m b e r of
them which the court finds to be sufficiently
n u m e r o u s a n d r e p r e s e n t a t i v e a s t o fully p r o t e c t t h e
i n t e r e s t s o f all c o n c e r n e d m a y s u e o r d e f e n d for
t h e b e n e f i t o f all. A n y p a r t y i n i n t e r e s t s h a l l h a v e
the right to intervene to protect his individual
i n t e r e s t . (12a)
NOTES
1. The requisites of a class suit (or r e p r e s e n t a t i v e

suit) are:
--a. The subject-matter of t h e controversy is one of
common or general i n t e r e s t to many persons;
--b. The p a r t i e s affected a r e so n u m e r o u s t h a t it is
impracticable to bring t h e m all before the court; and
y c. The p a r t i e s bringing the class suit are sufficiently
n u m e r o u s or r e p r e s e n t a t i v e of t h e class and can fully
protect t h e i n t e r e s t s of all concerned.
97
RULE 3 R E M E D I A L LAW C O M P E N D I U M S E C . 12
2. The complaint must specially s t a t e t h a t t h e same

is b e i n g b r o u g h t in b e h a l f of o t h e r s w i t h w h o m t h e
p a r t i e s s h a r e a common interest (Borlasa vs. Polistico,
47 Phil. 345; Claudio vs. Zandueta, 64 Phil. 819). If
t h e r e is a conflict of i n t e r e s t between those sought to be
r e p r e s e n t e d a n d t h o s e who filed t h e action, t h e class
suit will not prosper (Ibahez vs. Roman Catholic Church,
12 Phil. 227). The p a r t y bringing t h e class suit m u s t
have t h e legal capacity to do so (Chinese Flour Importers
Association vs. Price Stabilization Board, 9 Phil. 461;
Anti-Chinese League vs. Felix, 77 Phil. 1012; Recreation
& Amusement Association vs. City of Manila, 100 Phil.
950). However, wrongs suffered by some stockholders do
not necessarily constitute the same wrongs to other
s t o c k h o l d e r s a s would c r e a t e t h a t c o m m o n o r g e n e r a l
i n t e r e s t in t h e s u b j e c t - m a t t e r (Mathay, et al. vs. Con-
solidated Bank & Trust Co., et al., L-23136, Aug. 26,
1974). See also Newsweek, Inc. vs. IAC, et al. (G.R. No.
63559, May 30, 1986) r e g a r d i n g a supposed class suit for
libel a g a i n s t s u g a r p l a n t e r s in Negros which w a s denied
since each plaintiff h a s a s e p a r a t e a n d distinct r e p u t a t i o n
in t h e community.
3. Formerly, when the courts had jurisdiction in labor

cases, it w a s held t h a t a class suit to recover wages due to
23 l a b o r e r s is not p r o p e r as t h e p a r t i e s s o u g h t to be
represented are not so numerous as to make it
impracticable to include t h e m individually in t h e com-
pla int (Diaz vs. De la Rama, 73 Phil. 104). The principle
would apply t o o t h e r s i m i l a r s i t u a t i o n s n ot involving
labor relations.
4. One plaintiff w a s held qualified to bring a class

suit in behalf of t h e m e m b e r s of t h e Methodist Episcopal
religious association, it appearing t h a t he had been
chosen by said association to look after t h e i r i n t e r e s t s
(De la Cruz vs. Seminary of Manila, 18 Phil. 334).
98
RULE 3 PARTIES TO CIVIL A C T I O N S S E C . 12
5. The p a r t i e s who brought the class suit have

control over t h e case w i t h t h e right to compromise or even
discontinue t h e s a m e . B u t a class suit cannot be com-
promised or dismissed w i t h o u t t h e approval of t h e court
(Sec. 2, Rule 17). A m e m b e r of t h e class is bound by t h e
j u d g m e n t in t h e class suit, hence t h i s section gives him
t h e r i g h t to i n t e r v e n e if he d e s i r e s to p r o t e c t his own
individual i n t e r e s t s . In t h e i n t e r e s t of justice, t h e a b s e n t
members should be notified of t h e filing of t h e class suit
whenever practicable.
6. As amended, t h i s section now regulates not only

the right and r e q u i r e m e n t s for a group to sue b u t also
to defend in a class suit.
7. A t a x p a y e r ' s s u i t (see Gonzales vs. Hechanova,

L-21897, Oct. 22, 1963; Phil. Constitution Association,
Inc. vs. Gimenez, L-23326, Dec. 18, 1965) or a stockholder's
derivative s u i t a r e in t h e n a t u r e of a class suit, although
subject to the o t h e r requisites of the corresponding
governing law (cf. Financing Corp. of the Phil. vs. Teodoro,
93 Phil. 679), especially on t h e issue of locus standi.
8. C l a i m a n t s of different portions embraced in a big
t r a c t of land cannot be impleaded altogether in a class
suit by or a g a i n s t t h e m as each one of t h e m has a
p a r t i c u l a r i n t e r e s t i n h i s own p o r t i o n , s e p a r a t e a n d
different from t h e o t h e r s (see Rallonza vs. Villanueva,
15 Phil. 531; Berses vs. Villanueva, 25 Phil. 473; Sulo ng
Bayan, Inc. vs. Gregorio Araneta, Inc., et al., supra).
However, if t h e r i g h t to relief a r o s e out of t h e s a m e
t r a n s a c t i o n or s e r i e s of t r a n s a c t i o n s a n d t h e r e is a
common question of law or fact, they may be joined in
one suit as plaintiffs or defendants in accordance with
Sec. 6 of this Rule on permissive joinder of p a r t i e s .
9. An action does not become a class suit merely

because it is designated as such in the pleadings.
Whether t h e suit is or is not a class suit depends upon
99
RULE 3 REMEDIAL LAW C O M P E N D I U M S E C . 13
the a t t e n d i n g facts, and the complaint or other pleading

initiating the class action should allege t h e existence of a
subject-matter of common interest, as well as t h e existence
of a class and t h e n u m b e r of persons in the alleged class,
in order t h a t the court may be able to d e t e r m i n e w h e t h e r
t h e m e m b e r s of t h e class are so n u m e r o u s as to m a k e it
impracticable to bring t h e m all before the court, to contrast
t h e n u m b e r a p p e a r i n g on the record with t h e n u m b e r in
t h e class, to ascertain w h e t h e r t h e c l a i m a n t s on record
a d e q u a t e l y r e p r e s e n t t h e class, a n d t o verify t h a t t h e
subject-matter is of general or common i n t e r e s t (Mathay,
et al. vs. Consolidated Bank & Trust Co., et al., supra; cf.
Ortigas & Co. vs. Ruiz, et al., L-33952, Mar. 9, 1987).
10. U n d e r t h e former Rule, w h e n a supposed class

suit was filed, it was t h e duty of t h e court to m a k e sure
t h a t t h e p a r t i e s a c t u a l l y before i t w e r e s u f f i c i e n t l y
n u m e r o u s a n d r e p r e s e n t a t i v e o f t h e class. U n d e r t h e
p r e s e n t formulation, such fact is one of t h e requisites for
i n s t i t u t i n g and m a i n t a i n i n g a class suit. The significance
of such change is t h a t the p a r t i e s bringing t h e suit have
the b u r d e n of proving t h e sufficiency of t h e r e p r e s e n t a t i v e
c h a r a c t e r which they claim. Corollarily, t h e defendant
can assail t h a t fact t h r o u g h a motion to dismiss on t h e
ground t h a t the plaintiffs have no capacity to sue
(Sec. lfdj, Rule 16), t h a t is, t h a t they do not have t h e
r e p r e s e n t a t i o n t h a t they claim (see Lunsod vs. Ortega,
46 Phil 664).
S e c . 13. Alternative defendants. — W h e r e t h e

plaintiff is uncertain against w h o of several persons
h e i s e n t i t l e d t o relief, h e m a y j o i n a n y o r all o f t h e m
as defendants in the alternative, although a right
to relief against one may be inconsistent with a
r i g h t o f r e l i e f a g a i n s t t h e o t h e r . (13a)
100
RULE 3 P A R T I E S TO CIVIL A C T I O N S SECS. 14-15
NOTE
1. Thus, where the owner of the goods is not sure

w h e t h e r the same was lost in t r a n s i t or while it was on
deposit in the warehouse of the a r r a s t r e o p e r a t o r , he
may sue the s h i p p e r or the operator in t h e a l t e r n a t i v e ,
although the r i g h t a g a i n s t the former is on a d m i r a l t y
while t h a t a g a i n s t t h e o p e r a t o r i s o n c o n t r a c t (see
Insurance Company of North America vs. United States
Lines Co., L-21839, April 30, 1968).
S e c . 14. Unknown identity or name of defendant. —

Whenever the identity or name of a defendant is
unknown, he may be sued as the unknown owner,
heir, d e v i s e e , o r b y s u c h o t h e r d e s i g n a t i o n a s t h e
case m a y require; w h e n his identity or true name
is discovered, the pleading must be amended
a c c o r d i n g l y . (14)
NOTES
1. A r e l a t e d provision in Rule 14 reads as follows:

"Sec. 14. Service upon defendant whose identity
or whereabouts are unknown. — In a n y a c t i o n ,
w h e n e v e r the defendant is designated as an unknown
owner, or the like or whenever his w h e r e a b o u t s are
u n k n o w n and cannot be ascertained by diligent
inquiry, service may, by leave of court, be effected
upon h i m by publication in a newspaper of general
circulation a n d in such places and for such time as
the court may order."
2. This presupposes t h a t t h e plaintiff really does not
know the identity and/or address of t h e defendant or is
not in a position to ascertain such identity or whereabouts.
Sec. 15. Entity without juridical personality as

defendant. — W h e n t w o or m o r e p e r s o n s not
101
organized as an entity with juridical personality

enter into a transaction, they may be sued under
the name by which they are generally or commonly
known.
In the answer of such defendant, the names
and addresses of the persons composing said
e n t i t y m u s t all b e r e v e a l e d . (15a)
NOTES
1. Rule 14 p e r t i n e n t l y provides as follows:

"Sec. 8. Service upon entity without juridical
personality. — When persons associated in an entity
without juridical personality are sued u n d e r t h e name
by which t h e y a r e g e n e r a l l y or commonly k n o w n ,
service may be effected upon all t h e d e f e n d a n t s by
serving upon any one of t h e m , or upon t h e p e r s o n in
charge of t h e office or place of business m a i n t a i n e d
in such n a m e . But such service shall not bind
individually any person whose connection w i t h the
e n t i t y has, upon due notice, been severed before t h e
action was brought."
2. With respect to j u d g m e n t s to be r e n d e r e d in this

situation, Sec. 6 of Rule 36 provides t h a t w h e n j u d g m e n t
is r e n d e r e d a g a i n s t two or more p e r s o n s associated in an
entity w i t h o u t juridical personality, t h e j u d g m e n t shall
set out t h e i r individual or proper n a m e s , if known.
3. The predecessor of t h i s section referred only to

suits against two or more persons associated in any
business a n d who t r a n s a c t such b u s i n e s s u n d e r a com-
mon n a m e . Accordingly, it w a s understood t h a t t h e suit
c o n t e m p l a t e d t h e r e i n could b e b r o u g h t only a g a i n s t
associations which do not have an i n d e p e n d e n t juridical
personality b u t a r e engaged in business, t h u s excluding
non-profit or c h a r i t a b l e associations. T h a t d i s t i n c t i o n
h a s been eliminated in t h i s revision since non-profit or
102
RULE 3 PARTIES TO CIVIL ACTIONS S E C . 16
charitable associations can also commit and be liable for

actionable wrongs.
S e c . 16. Death of party; duty of counsel. — W h e n -

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

of the former Rule, with the following amendments:
103
a. The duties of t h e counsel, as specified u n d e r t h e

first p a r a g r a p h , are now limited to the m a t t e r of the death
of his client and not in case of the latter's incapacity or
incompetency. The reason for the change is t h a t the death
of t h e client will r e q u i r e his s u b s t i t u t i o n by his legal
r e p r e s e n t a t i v e to be ordered by t h e court w h e r e i n t h e
case is pending, or even t h e a p p o i n t m e n t of an executor
or a d m i n i s t r a t o r but, t h i s time, by a court of p r o b a t e
jurisdiction. In the case of incapacity or incompetency of
the p a r t y , this fact will merely entail t h e a p p o i n t m e n t of
a g u a r d i a n ad litem by t h e court t r y i n g t h e case upon
being informed t h e r e o f by counsel of t h e p a r t i e s , t h e
p a r t i e s themselves, or other reliable sources.
b. T h e failure of t h e counsel to comply w i t h his
duties u n d e r t h i s section is now a ground for disciplinary
action, as his inaction will result in u n d u e delay in t h e
proceedings or may prejudice t h e i n t e r e s t s of his client's
successors in interest.
c. In t h e absence of a legal r e p r e s e n t a t i v e of t h e
deceased p a r t y , t h e opposing p a r t y s h a l l b e r e q u i r e d ,
w i t h i n a specified time, to procure t h e a p p o i n t m e n t of
an executor or a d m i n i s t r a t o r for t h e e s t a t e of t h e deceased
in an a p p r o p r i a t e special proceeding. U n d e r t h e former
p r o c e d u r e , in s u c h a c o n t i n g e n c y t h e o p p o s i n g p a r t y
was authorized to directly procure t h e a p p o i n t m e n t of a
legal r e p r e s e n t a t i v e for t h e d e c e a s e d by h i m s e l f a n d
apparently without participation by the heirs of the
deceased and, consequently, with limited judicial interven-
tion in t h e choice and a p p o i n t m e n t of such r e p r e s e n t a t i v e .
2. These provisions apply w h e r e t h e claim survives

a n d r e g a r d l e s s o f w h e t h e r e i t h e r t h e plaintiff o r t h e
d e f e n d a n t dies or w h e t h e r t h e case is in t h e t r i a l or
appellate courts. No summonses are required to be
served on t h e s u b s t i t u t e defendants. I n s t e a d , t h e order
of substitution shall be served upon the p a r t i e s substituted
in t h e action; otherwise, t h e court does not acquire juris-
104
RULE 3 P A R T I E S TO CIVIL A C T I O N S S E C . 16
diction over the s u b s t i t u t e p a r t y (Ferreria, et al. vs. Vda.

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

not depends on t h e n a t u r e of the action and the damage
sued for. In the causes of action which survive, t h e wrong
complained of affects p r i m a r i l y and principally property
and property righto, the injuries to the person being merely
incidental; while in the causes of action which do not
s u r v h » , the injury complained of is to the person, the
105
property and property rights affected being incidental.

Thus, for instance, the claim of t h e deceased plaintiff in
t h e p r e s e n t action to quiet title over t h e land in litigation
affects primarily and principally property and property
rights and, therefore, is one t h a t survives even after h e r
d e a t h (Bonilla, et al., etc. vs. Barcena, et al., L-41715,
June 18, 1976).
5. The actions t h a t survive a g a i n s t t h e decedent's

r e p r e s e n t a t i v e s a r e : (a) a c t i o n s t o r e c o v e r r e a l a n d
personal property against t h e e s t a t e ; (b) actions to enforce
liens thereon; and (c) actions to recover for an injury to
person or property by reason of tort or delict committed
by t h e deceased (Board of Liquidators, etc. vs. Heirs of
Maxima M. Kalaw, et al, L-18805, Aug. 14, 1967). See
Rule 87 a n d notes t h e r e u n d e r . See also Sec. 20 of t h i s
Rule which h a s been a m e n d e d and provides a new
procedure for c o n t r a c t u a l money claims.
6. W h e r e d u r i n g t h e p e n d e n c y of actions filed by
t h e g u a r d i a n in behalf of his ward, t h e l a t t e r died and
t h e former w a s t h e r e a f t e r a p p o i n t e d a d m i n i s t r a t o r of
t h e e s t a t e of t h e decedent, he may be s u b s t i t u t e d as a
representative p a r t y in t h e pending actions (Ypil vs. Solas,
et al., L-49311, May 27, 1979).
7. It h a s been held t h a t w h e n a p a r t y dies a n d t h e

action s u r v i v e s his d e a t h , b u t no o r d e r of s u b s t i t u t i o n
was issued or effected by t h e court, t h e t r i a l held by said
court was null a n d void since it did not acquire jurisdic-
tion over t h e legal r e p r e s e n t a t i v e or heirs of t h e decedent,
hence t h e j u d g m e n t was not binding on t h e m (Ferreria,
et al. vs. Vda. de Gonzales, et al., supra). In a l a t e r case,
however, it w a s also held t h a t w h e r e counsel failed to
comply w i t h his d u t y u n d e r t h e n Sec. 16 to inform the
court of t h e d e a t h of his client, t h e defendant, a n d no
s u b s t i t u t i o n of such p a r t y w a s effected, t h e proceedings
a n d j u d g m e n t t h e r e i n a r e valid i f t h e a c t i o n (in t h i s
case, e j e c t m e n t ) s u r v i v e s t h e d e a t h of said p a r t y a n d
106
RULE 3 PARTIES TO CIVIL ACTIONS S E C . 16
said decision is b i n d i n g upon his successor in i n t e r e s t

(Sec. 47lb]. Rule 39; Florendo, et al. vs. Coloma, et al
G.R. No. 60544, May 19, 1984).
In t h e Florendo case, however, t h e defendant died
while t h e case w a s p e n d i n g on a p p e a l in t h e C o u r t of
Appeals and, consequently, involved only a review of t h e
evidence p r e s e n t e d with t h e participation of t h e original
party litigants. Also, since t h e binding effect of a judg-
ment in an ejectment case upon t h e successors in i n t e r e s t
of a d e c e a s e d l i t i g a n t a r e specifically provided for in
Rule 39, t h e p r o c e d u r a l l a p s e a p p e a r s t o h a v e b e e n
disregarded in t h e i n t e r e s t of s u b s t a n t i a l justice.
8. Where the plaintiff father brought an action
against a common c a r r i e r for t h e d e a t h of his son, b u t
because of his failing h e a l t h he assigned all his r i g h t s
t h e r e i n to a t h i r d p a r t y , t h e s u b s e q u e n t d e a t h of said
original plaintiff does not t e r m i n a t e the action. The rights
assigned a r e t r a n s f e r a b l e in c h a r a c t e r a n d this situation
is not covered by Sec. 17 (now included in Sec. 16, as
amended) of t h i s Rule since t h e plaintiff died after he
had already assigned his r i g h t s in t h e action. Where a
right is t r a n s f e r r e d before t h e institution of t h e action,
the suit should be b r o u g h t in t h e n a m e of the assignee;
where t h e t r a n s f e r is m a d e pendente lite, t h e assignee
should be s u b s t i t u t e d for t h e o r i g i n a l plaintiff. T h e
failure to effect such formal substitution, however, will
not p r e v e n t t h e court from r e n d e r i n g j u d g m e n t in favor
of the assignee. If j u d g m e n t w a s r e n d e r e d in favor of
t h e a s s i g n o r b e c a u s e t h e s u b s t i t u t i o n w a s not d u l y
effected, t h e a s s i g n o r s h a l l hold t h e p r o c e e d s of t h e
j u d g m e n t in t r u s t for t h e a s s i g n e e (Del Castillo vs.
Jaymalin, et al., L 28256, Mar. 11, 1982).
9. Sec. 16 of t h i s Rule requires t h a t prompt notice
of the d e a t h of t h e plaintiff should be made so t h a t sub-
stitution by a legal r e p r e s e n t a t i v e of the p a r t y may be
effected. Where t h e counsel of plaintiff filed such motion
107
RULE 3 R E M E D I A L LAW C O M P E N D I U M SECS. 17-18
for substitution 5 days after a decision in t h e case had

been rendered by the court, although plaintiff had died
more t h a n a y e a r p r i o r t h e r e t o , said j u d g m e n t is not
binding. No valid s u b s t i t u t i o n having been m a d e , t h e
court never acquired jurisdiction over t h e legal r e p r e -
sentative for t h e purpose of making him a p a r t y in t h e
case. F u r t h e r m o r e , the motion for substitution filed by
counsel for t h e deceased is null a n d void as counsel's
a u t h o r i t y t o r e p r e s e n t t h e client h a d ceased w i t h t h e
latter's d e a t h (Chittick vs. CA, et al., L-25350, Oct. 4, 1988;
cf. Saligumba, et al. vs. Palanog, G.R. No. 143365,
Dec. 4, 2008).
S e c . 17. Death or separation of a party who is a

public officer. — W h e n a p u b l i c o f f i c e r is a p a r t y in
a n a c t i o n i n h i s official c a p a c i t y a n d d u r i n g its
pendency dies, resigns, or otherwise ceases to hold
office, t h e a c t i o n m a y b e c o n t i n u e d a n d m a i n t a i n e d
b y o r a g a i n s t h i s s u c c e s s o r if, w i t h i n t h i r t y (30) d a y s
a f t e r t h e s u c c e s s o r t a k e s office o r s u c h t i m e a s m a y
be granted by the court, it is satisfactorily shown
to the court by any party that there is a substantial
n e e d for c o n t i n u i n g o r m a i n t a i n i n g i t a n d t h a t t h e
successor adopts or continues or threatens to adopt
or c o n t i n u e t h e action of his predecessor. Before a
s u b s t i t u t i o n is m a d e , t h e p a r t y or officer to be
affected, u n l e s s expressly a s s e n t i n g t h e r e t o , shall
be given reasonable notice of the application
therefor and accorded an opportunity to be heard.
(18a)
S e c . 18. Incompetency or incapacity. — If a p a r t y

becomes incompetent or incapacitated, the court,
upon motion with notice, may allow t h e action to
be continued by or against the incompetent or
incapacitated person assisted by his legal g u a r d i a n
or g u a r d i a n ad litem. (19a)
108
RULE 3 PARTIES TO CIVIL ACTIONS SECS. 17-19
S e c . 19. Transfer of interest. — In c a s e of a n y

transfer of interest, the action may be continued
by or against the original party, unless the court
upon motion directs the person to whom the interest
is transferred to be substituted in the action or
j o i n e d w i t h t h e o r i g i n a l p a r t y . (20)
NOTES
1. These sections provide for t h e other instances

wherein s u b s t i t u t i o n of p a r t i e s is proper, subject to the
conditions t h e r e i n and w h e n e v e r the court, upon motion
and notice, finds justifiable reason therefor.
2. The "officer of t h e Philippines" contemplated in

Sec. 17 does not include a judge who is sued in connec-
tion w i t h t h e exercise of his judicial functions as any
action i m p u g n i n g it is not a b a t e d by his cessation from
office (Republic vs. CFI of Lanao del Norte, L 33949,
Oct. 23, 1973, jointly deciding t h e r e i n L-33986 and
L-34188).
3. Sec. 17 h a s been a m e n d e d to make it clear t h a t

the action contemplated t h e r e i n is one brought against
the public officer in his official capacity. Also, this section
is no longer limited to actions involving "an officer of
the Philippines," as it was u n d e r the former Rule, since
t h e r e a r e p e r m i s s i b l e i n s t a n c e s for m a i n t a i n i n g civil
s u i t s a g a i n s t public officers of a foreign g o v e r n m e n t ,
subject to t h e n a t u r e of t h e action and considerations of
i n t e r n a t i o n a l law and a g r e e m e n t s . F u r t h e r m o r e , it is
not required, as clarified u n d e r this revision, t h a t w h a t
the successor in office is continuing or t h r e a t e n s to adopt
and continue is an action of his predecessor "in enforcing
a law alleged to be in violation of the Constitution of the
Philippines." The challenged action of a public officer
need not necessarily involve a constitutional issue. It is
believed t h a t no such delimitation was intended under the
old Rule which authorized such substitution as long as
109
it was satisfactorily shown to t h e court t h a t t h e r e was a

s u b s t a n t i a l need for continuing t h e action (see Moore's
Federal Practice, Vol. II, p. 243).
4. U n d e r Sec. 18, as amended, in case of supervening
incapacity or incompetency of a p a r t y , t h e action shall
continue to be prosecuted by or against him personally
a n d n o t t h r o u g h h i s r e p r e s e n t a t i v e s , i n line w i t h t h e
a m e n d m e n t s in Secs. 3 and 5 of this Rule, since he con-
t i n u e s to be t h e real p a r t y in i n t e r e s t although assisted
by t h e corresponding g u a r d i a n .
5. Sec. 19 of t h i s Rule does not provide t h a t t h e

s u b s t i t u t i o n of p a r t i e s contemplated t h e r e i n is m a n d a -
tory, it being p e r m i s s i b l e to c o n t i n u e t h e action by or
a g a i n s t t h e original p a r t y in case of t r a n s f e r of i n t e r e s t
pendente lite. As t h e original p a r t y is bound by t h e final
outcome of t h e case, his s u b s t i t u t i o n by t h e t r a n s f e r e e is
not necessary u n l e s s t h e s u b s t i t u t i o n by or t h e joinder of
t h e l a t t e r is r e q u i r e d by t h e court; otherwise, failure to
do so does n o t w a r r a n t t h e d i s m i s s a l of t h e c a s e . A
t r a n s f e r e e pendente lite is a p r o p e r , a n d n o t an
i n d i s p e n s a b l e , p a r t y in t h e case (Heirs of Francisco
Guballa, Sr., et al. vs. CA, et al, G.R. No. 78223, Dec. 19,
1988). However, w h e r e t h e t r a n s f e r w a s effected before
the commencement of the suit, the transferee must
necessarily be t h e defendant or t h e plaintiff, b u t he m a y
file a t h i r d - p a r t y c o m p l a i n t a g a i n s t a n d i m p l e a d t h e
t r a n s f e r o r in t h e action w h e n e v e r t h e s a m e is necessary
and p r o p e r for a complete d e t e r m i n a t i o n of all t h e rights
of t h e p a r t i e s .
S e c . 2 0 . Action on contractual money claims. —

W h e n t h e a c t i o n i s for r e c o v e r y o f m o n e y a r i s i n g
from c o n t r a c t , e x p r e s s or implied, a n d t h e
d e f e n d a n t dies before e n t r y o f final j u d g m e n t i n t h e
court in which the action was pending at the time
of such death, it shall not be dismissed but shall
110
i n s t e a d be allowed to c o n t i n u e u n t i l e n t r y of final
judgment. A favorable j u d g m e n t obtained by the
plaintiff t h e r e i n shall be enforced in the m a n n e r
e s p e c i a l l y p r o v i d e d i n t h e s e R u l e s for p r o s e c u t i n g
claims a g a i n s t t h e e s t a t e of a d e c e a s e d p e r s o n . (21a)
NOTES
1. This w a s t h e former Sec. 21 of t h e old Rule which

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

result in a Regional Trial Court reviewing t h e decision of
a n o t h e r or even the same Regional Trial Court involving
t h e s a m e money claim.
On t h e o t h e r hand, if t h e defendant died while t h e
case was on a p p e a l from t h e j u d g m e n t of t h e Regional
Trial Court, t h e appeal will continue with t h e deceased
b e i n g s u b s t i t u t e d t h e r e i n b y h i s h e i r s o r o t h e r legal
representative. When the j u d g m e n t of the appellate court
t h e r e o n i s t h e r e a f t e r r e n d e r e d a n d s h a l l h a v e become
final and executory, t h a t j u d g m e n t shall be t h e basis of
t h e m o n e y c l a i m to be filed in t h e p r o b a t e c o u r t , as
likewise authorized by Sec. 5, Rule 86.
3. The p r e s e n t revised procedure is believed to be

s i m p l e r a n d more p r a c t i c a l since, after all, t h e c o u r t
w h e r e i n t h e c o n t r a c t u a l money claim w a s p e n d i n g a t
t h e t i m e of t h e decedent's d e a t h m u s t have been fully
a c q u a i n t e d with t h e facts and issues t h e r e i n , or may even
have been in t h e process of r e n d e r i n g j u d g m e n t t h e r e o n .
Accordingly, to require t h e dismissal of said case a n d t h e
t r a n s f e r thereof to t h e p r o b a t e court will cause an un-
necessary a n d otherwise avoidable b u r d e n on said court
which will t h e n be obliged to try a n d adjudicate t h e case
as a claim a g a i n s t t h e e s t a t e of t h e deceased defendant,
with t h e possibility t h a t it may even e n t a i l a duplication
of efforts and proceedings in whole or in p a r t .
4. U n d e r t h e p r e s e n t procedure, if t h e defendant dies
before e n t r y of final j u d g m e n t in t h e court w h e r e it was
pending at t h a t time, t h e action shall not be dismissed but
shall be allowed to continue until e n t r y of final j u d g m e n t
t h e r e o n . Such e n t r y of final j u d g m e n t may t a k e place in
the Regional Trial Court itself, w h e r e no appeal was t a k e n
from its j u d g m e n t , or it may be t h e e n t r y of j u d g m e n t of
t h e appellate court. In e i t h e r case, t h e former objection
a g a i n s t t h e probate court having to review t h e j u d g m e n t
of a n o t h e r court, which may possibly be of t h e s a m e r a n k ,
112
RULE 3 PARTIES TO CIVIL ACTIONS SEC. 20
is eliminated. Since t h e money claim t h a t shall thereafter

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

for a s u m of money which h a s become s t a l e for non-
execution after t h e lapse of 5 years, and the defendant
dies during t h e pendency of said action, Sec. 20 of this
Rule is not involved since t h e action is merely to keep
alive t h e j u d g m e n t s o t h a t t h e s u m s a w a r d e d i n t h e
action for revival thereof may be p r e s e n t e d as claims
113
against the estate of the decedent (Romualdez, et al. va.

Tiglao, et al, G.R. No. 51151, July 24, 1981). In fact, to
be more accurate, the subject of the action is the dormant
judgment sought to be revived, and not a claim for a
sum of money of contractual origin, since the same
may also be said even if the claim arises from a crime or a
tort.
S e c . 2 1 . Indigent party. — A p a r t y m a y be
authorized to litigate his action, claim or defense
a s a n i n d i g e n t i f t h e c o u r t , u p o n a n e x parte
application and hearing, is satisfied that the party
is one w h o has no money or property sufficient and
a v a i l a b l e for f o o d , s h e l t e r a n d b a s i c n e c e s s i t i e s for
himself and his family.
Such authority shall include an exemption
from p a y m e n t of docket and other lawful fees, and
of transcripts of stenographic notes which the
court may order to be furnished him. The amount
of the docket and other lawful fees which the
indigent w a s e x e m p t e d from p a y i n g shall be a lien
on any judgment rendered in the case favorable to
the indigent, unless the court otherwise provides.
Any adverse party may contest the grant of
such authority at any time before judgment is
rendered by the trial court. If the court should
d e t e r m i n e after h e a r i n g that the party d e c l a r e d as
an i n d i g e n t is in fact a p e r s o n w i t h sufficient
income or property, the proper docket and other
lawful fees shall be assessed and collected by
the clerk of court. If payment is not made within
the time fixed by the court, e x e c u t i o n shall issue
for t h e p a y m e n t t h e r e o f , w i t h o u t p r e j u d i c e t o s u c h
o t h e r s a n c t i o n s a s t h e c o u r t m a y i m p o s e . (22a)
114
NOTES
1. The t e r m "indigent p a r t y " h a s been s u b s t i t u t e d

for w h a t used to be called a "pftoper litigant." For purposes
of a suit in forma pauperis,-* p a u p e r litigant is not really
a p a u p e r but a p e r s o n who is i n d i g e n t a l t h o u g h not a
public c h a r g e , i.e., t h a t he has no p r o p e r t y or income-
sufficient for his s u p p o r t aside from his labor, even if he
is self-supporting when able to work and in e m p l o y m e n t
(see Black's Law Dictionary, 4th Ed., pp. 913, 1284, citing
People vs. Schoharie County, 121 N.Y., 345, 24N.E. 830).
This s a m e concept w a s adopted for p u r p o s e s of criminal
cases in applying t h e provisions of R.A. 6033, R.A. 6034
and R.A. 6035.
2. T h e p r e s e n t c o n c e p t of an i n d i g e n t l i t i g a n t is
believed to be more realistic in light of t h e contemporary
s i t u a t i o n . T h e proof of p a u p e r i s m r e q u i r e d u n d e r t h e
former Rule consisted merely of affidavits or certificates
of t h e c o r r e s p o n d i n g t r e a s u r e r s t h a t t h e p a r t y had no
r e g i s t e r e d p r o p e r t y . I t w a s considered i n a c c u r a t e and
misleading since a p a r t y may be financially sound although
h e h a s n o t a c q u i r e d o r r e g i s t e r e d a n y p r o p e r t y for
reasons of his own, hence t h e p r e s e n t revision opted for
judicial i n t e r v e n t i o n w i t h s a n c t i o n s a s set out i n t h i s
section.
3. Section 2 1 , Rule 3 of t h e p r e s e n t Rules h a s not

been affected by t h e incorporation of Rule 141 on Legal
Fees a n d t h e two a m e n d m e n t s t h e r e t o , now constituting
Section 19 thereof. It is to be noted t h a t said Section 21 of
Rule 3 could have been repealed w h e n t h e p r e s e n t Rule
141 was adopted, or also a m e n d e d when t h e l a t t e r was
then a m e n d e d . The fact is t h a t t h e two provisions can be
harmonized a n d can s t a n d together.
T h u s , w h e n an application to litigate as an indigent
litigant is filed a n d t h e court finds t h a t it complies with
Section 19 of Rule 141, t h e a u t h o r i t y to litigate as such is
115
automatically g r a n t e d . However, if both r e q u i r e m e n t s

t h e r e i n have not been complied with, a h e a r i n g shall be
conducted and t h e application resolved on t h e evidence
of t h e p a r t i e s . Also, t h e adverse p a r t y m a y l a t e r still
c o n t e s t t h e g r a n t before j u d g m e n t a n d proceed in
accordance with t h e p r e s e n t provisions of said Section 21
(Algura, et al. vs. City of Naga, et al., G.R. No. 150135,
Oct. 30, 2006).
S e c . 22. Notice to the Solicitor General. — In a n y

action involving the validity of any treaty, law,
ordinance, executive order, presidential decree,
r u l e s o r r e g u l a t i o n s , t h e c o u r t , i n its d i s c r e t i o n , m a y
require the appearance of the Solicitor General who
may be heard in person or through a representative
d u l y d e s i g n a t e d b y h i m . (23a)
116
RULE 4
VENUE OF ACTIONS
S e c t i o n 1. Venue of real actions. — A c t i o n s

affecting title to or possession of real property, or
interest therein, shall be commenced and tried in
the proper court which has jurisdiction over the
area wherein the real property involved, or a
portion thereof, is situated.
Forcrbre^ntry and detainer actions shall be
c o m m e n c e d and tried in the municipal trial court
of the municipality or city wherein the real
property involved, or a portion thereof, is situated.
(l[a],2[a]a)
S e c . 2. Venue of personal actions. — A l l o t h e r

actions may be commenced and tried where the
plaintiff or any of the principal plaintiffs resides,
or where the defendant or any of the principal
defendants resides, or in the case of a nonresident
defendant where he may be found, at the election
o f t h e plaintiff. (2[b]a)
NOTES
1. Rule 4 formerly provided different rules of venue

in t h e so-called inferior c o u r t s a n d t h e Regional Trial
Courts, both in r e a l and personal actions, although the
lower courts have long a s s u m e d t h e s t a t u s of courts of
record. Such v a r i a n t rules of venue sometimes resulted
in conflicting views r e q u i r i n g clarification. F u r t h e r m o r e ,
Par. 9 of t h e I n t e r i m or T r a n s i t i o n a l Rules and Guidelines
provided, as early as 1981, t h a t "(t)he procedure to be
observed in metropolitan trial courts, municipal trial courts
and municipal circuit t r i a l courts, in all cases and
proceedings, w h e t h e r civil or criminal, shall be t h e same
117
RULE 4 REMEDIAL LAW C O M P E N D I U M SECS 1-2
as t h a t to be observed in t h e regional t r i a l courts." The

p r e s e n t revised Rule has adopted uniform rules of venue
for all t r i a l c o u r t s , t h e v e n u e for r e a l a c t i o n s b e i n g
determined by the place where the real property is situated
and, for personal actions, by t h e residence of t h e p a r t i e s ,
with special provisions for nonresident defendants.
2. The v e n u e of t h e r e a l actions c o n t e m p l a t e d in
t h e first p a r a g r a p h of Sec. 1 of t h i s Rule shall be "in t h e
proper court which h a s jurisdiction over t h e a r e a w h e r e i n
the r e a l p r o p e r t y involved, or a portion thereof, is
situated." This is so because under the a m e n d m e n t s
i n t r o d u c e d by R.A. 7 6 9 1 to Secs. 19 a n d 33 of B.P. Blg. 129, both t h e Regional Trial C o u r t s a n d t h e lower
courts now have jurisdiction over real actions, d e p e n d i n g
on the value of the property in controversy. This
p r e s u p p o s e s , h o w e v e r , t h a t s u c h r e a l a c t i o n involves
the title to or t h e possession of t h e r e a l p r o p e r t y or any
interest therein.
3. Where t h e subject-matter of t h e action involves

various parcels of land s i t u a t e d in different provinces,
t h e venue is d e t e r m i n e d by t h e singularity or p l u r a l i t y
of t h e t r a n s a c t i o n s involving said parcels of land. T h u s ,
w h e r e said parcels a r e t h e objects of one a n d t h e s a m e
t r a n s a c t i o n , t h e v e n u e w a s in t h e t h e n C o u r t of F i r s t
I n s t a n c e of any of t h e provinces w h e r e i n a parcel of land
is s i t u a t e d (El Hogar Filipino vs. Seva, 57 Phil. 873). If
t h e parcels of land a r e subject of s e p a r a t e a n d distinct
t r a n s a c t i o n s , t h e r e i s n o common v e n u e a n d s e p a r a t e
actions should be laid in t h e Court of F i r s t I n s t a n c e of
the province wherein each parcel of land is situated
(Mijares, et al. vs. Piccio, etc., et al., 101 Phil. 142).
4. A c t i o n s for t h e a n n u l m e n t or r e s c i s s i o n of a
sale a n d t h e r e t u r n of realty (Muhoz vs. Llamas, et al.,
87 Phil. 737; Gavieres vs. Sanchez, et al., 94 Phil. 760;
Punsalan vs. Vda. de Lacsamana, et al., G.R. No. 55729,
Mar. 28, 1983), to compel t h e vendor to accept p a y m e n t
118
RULE 4 V E N U E OF ACTIONS SECS. 1-2
of t h e p u r c h a s e p r i c e of t h e l a n d (Lizares vs. Caluag,

et al., L-17699, Mar. 30, 1962), or to compel t h e v e n d o r to
deliver t h e certificate of title to t h e land (Espineli, et al.
vs. Santiago, et al., 107 Phil. 830) a r e r e a l actions a n d
the location of t h e land d e t e r m i n e s t h e venue of t h e action.
But actions only to recover t h e p u r c h a s e price of t h e land
(Garcia vs. Velasco, 72 Phil. 248) or for recovery a g a i n s t
t h e A s s u r a n c e F u n d (Hodges vs. Treasurer of the Phil.,
50 Phil. 16) a r e p e r s o n a l actions.
5. An action for t h e a n n u l m e n t of t h e cancellation

of t h e a w a r d of a lot in favor of t h e plaintiff, which he
was p r e p a r e d to p a y for p u r s u a n t to said a w a r d , does
not involve t h e issue of possession or title to t h e property,
hence it is a p e r s o n a l action (Hernandez vs. DBP, et al.,
L-31095, June 15, 1976).
6. An a c t i o n for t h e r e v i e w of an a d m i n i s t r a t i v e
decision involving r e a l p r o p e r t y should he brought in t h e
Regional T r i a l Court of t h e place w h e r e t h e officer who
r e n d e r e d t h e decision holds office, a n d not w h e r e t h e
land is s i t u a t e d (Salud vs. Executive Secretary, L-25446,
May 22, 1969), such as w h e r e t h e m a t t e r in dispute is a
fishpond p e r m i t (Digon vs. Bayona, 98 Phil. 442; Sarabia
vs. Secretary, 104 Phil. 115) or t h e r i g h t to a t i m b e r
concession (Suarez vs. Reyes, L-19828, Feb. 28, 1963),
the location of t h e p r o p e r t y being i m m a t e r i a l .
7. An action to compel the mortgagee to accept

p a y m e n t a n d for t h e c o n s e q u e n t cancellation of a real
e s t a t e m o r t g a g e is a p e r s o n a l action, if t h e m o r t g a g e e
has not foreclosed t h e mortgage and t h e mortgagor is in
possession of t h e p r e m i s e s , since n e i t h e r t h e plaintiff
mortgagor's title to nor possession of t h e property is in
q u e s t i o n (Hernandez vs. Rural Bank of Lucena, Inc.,
L-29791, Jan. 10, 1978; cf. Chua vs. Total Office Products,
etc. Inc., G.R. No. 152808, Sept. 30, 2005), otherwise, it
is a real action.
119
8. An^ action by the landowner against t h e subdivi-

sion developer for the rescission and t e r m i n a t i o n of their
contract and the r e t u r n to the plaintiff of all documents
a n d titles, w i t h d a m a g e s by r e a s o n of t h e d e f e n d a n t ' s
contractual breach, is a real action as t h e relief sought
will necessarily e n t a i l t h e recovery by t h e plaintiff of
possession of t h e land or such unsold portions thereof,
hence t h e venue of the action is determined by t h e location
of t h e real p r o p e r t y (Tenorio vs. Paho, et al, L-48117,
Nov. 27, 1986).
9. An action filed by the h u s b a n d for damages, based
on t h e wife's a d u l t e r o u s acts, and for his s h a r e in t h e
fruits of t h e conjugal p a r t n e r s h i p , with a p r a y e r for pre-
l i m i n a r y i n j u n c t i o n t o r e s t r a i n h e r from s e l l i n g r e a l
p r o p e r t y b e l o n g i n g to t h e conjugal p a r t n e r s h i p , is a
personal action as he does not thereby a s k to be declared
t h e owner thereof, nor for possession or p a r t i t i o n of the
same, b u t merely seeks to exercise his right as adminis-
t r a t o r of t h e conjugal p a r t n e r s h i p (De Guzman, et al. vs.
Genato, et al., L-42260, April 10, 1979).
10. The v e n u e in ejectment cases u n d e r Sec. 1 of this

Rule may be changed by a g r e e m e n t of the p a r t i e s
p u r s u a n t to Sec. 4 t h e r e o f (Villanueva vs. Mosqueda,
et al, G.R. No. 58287, Aug. 19, 1982), b u t it m u s t now be
made in w r i t i n g a n d before t h e filing of t h e action.
1 1 . The r u l e s of v e n u e for p e r s o n a l actions in t h e

inferior courts and in the Regional Trial Courts are
generally made to depend on t h e residence of t h e p a r t i e s .
The residence referred to is t h e place w h e r e t h e p a r t y
actually resides at t h e time t h e action is i n s t i t u t e d (De la
Rosa vs. De Borja, 53 Phil. 998), not his p e r m a n e n t home
or domicile (Koh vs. CA, et al, L-40428, Dec. 17, 1975; cf.
Arevalo vs. Quilatan, G.R. No. 57892, Sept. 21, 1982,
r e g a r d i n g service of s u m m o n s at defendant's residence).
120
RULE 4 VENUE OF ACTIONS SEC. 3
12. The residence of t h e person is his personal, a c t u a l

or physical h a b i t a t i o n or his a c t u a l residence or place of
abode (Fule, et al. vs. CA, et al., L-40502, Nov. 29, 1976),
w h e t h e r p e r m a n e n t or t e m p o r a r y as long as he resides
with continuity a n d consistency t h e r e i n (Dangwa Trans.
Co., Inc. vs. Sarmiento, et al., L-22795, Jan. 31, 1977;
Ang Kek Chen vs. Spouses Calasan, G.R. No. 161685,
July 24, 2007).
S e c . 3. Venue of actions against nonresidents. — If

any of the defendants does not reside and is not
found i n t h e P h i l i p p i n e s , a n d t h e a c t i o n affects t h e
p e r s o n a l s t a t u s o f t h e plaintiff, o r a n y p r o p e r t y o f
said d e f e n d a n t located in t h e P h i l i p p i n e s , t h e action
may be commenced and tried in the court of the
place w h e r e the plaintiff resides, or where the
property or any portion thereof is situated or found.
(2[cla)
NOTES
1. W h e r e a p e r s o n a l action is a g a i n s t a r e s i d e n t
defendant a n d a n o n r e s i d e n t defendant b u t who is in t h e
Philippines, both of whom a r e principal defendants, t h e
venue may be laid e i t h e r w h e r e t h e r e s i d e n t defendant
resides or where the nonresident defendant may be
found, as a u t h o r i z e d by Sec. 2 of this Rule, but with an
additional a l t e r n a t i v e v e n u e , i.e., t h e residence of any of
the principal plaintiffs, p u r s u a n t to Secs. 2 and 3.
It will be observed t h a t w h e n t h e r e is more t h a n one
defendant or plaintiff in t h e case, t h e residences of t h e
p r i n c i p a l p a r t i e s s h o u l d b e t h e b a s i s for d e t e r m i n i n g
the p r o p e r v e n u e . O t h e r w i s e , t h e purpose of t h e Rule
would be defeated w h e r e a n o m i n a l or formal p a r t y is
impleaded in t h e action since t h e l a t t e r would not have
the degree of i n t e r e s t in t h e subject of the action which
would w a r r a n t and entail the desirably active participation
expected of litigants in a case.
121
2. Sec. 4 of t h e former Rule provided t h a t "(w)hen

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

Reyes, L-28882, May 31, 1971, involving a s u i t a g a i n s t
a foreign corporation).
4. Where, on the other hand, it is the defendant

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

shall not apply —
(a) I n t h o s e c a s e s w h e r e a s p e c i f i c r u l e o r l a w
provides otherwise; or
(b) W h e r e t h e p a r t i e s h a v e v a l i d l y a g r e e d i n
writing before the filing of the action on the
exclusive v e n u e thereof. (3a, 5a)
NOTES
1. Sec. 4(b) e n u n c i a t e s a clarification of t h e rule

regarding stipulations of t h e p a r t i e s on venue. It requires
a valid w r i t t e n a g r e e m e n t executed by t h e p a r t i e s before
the filing of t h e action. Accordingly, t h e provision in t h e
former Sec. 3 of t h i s Rule to t h e effect t h a t "(b)y w r i t t e n
a g r e e m e n t of t h e p a r t i e s t h e venue of an action may be
changed or t r a n s f e r r e d from one province to a n o t h e r "
123
has been eliminated.

To be binding, t h e p a r t i e s m u s t have agreed on t h e
exclusive n a t u r e of t h e venue of any prospective action
between t h e m . This adopts t h e doctrines laid down by
t h e S u p r e m e Court requiring t h a t , to avoid t h e general
rules on venue, the a g r e e m e n t of the p a r t i e s thereon m u s t
be restrictive a n d not permissive. Those decisions are set
out h e r e u n d e r by way of illustrations, aside from other
decisional rules on venue.
2. It is f u n d a m e n t a l in t h e law governing venue of

a c t i o n s t h a t t h e s i t u s i s fixed t o a t t a i n t h e g r e a t e s t
convenience possible to the litigants by t a k i n g into
consideration t h e m a x i m u m accessibility to t h e m of t h e
courts of justice (Koh vs. CA, et al, L-40428, Dec. 17,
1975). V e n u e i n p e r s o n a l a c t i o n s i s fixed for t h e
convenience of t h e plaintiff a n d his w i t n e s s e s a n d to
promote t h e ends of justice. Where t h e contract, subject
of t h e suit, w a s executed at t h e time w h e n both plaintiff
and d e f e n d a n t had t h e i r business a d d r e s s e s in t h e City of
Manila and contained a proviso t h a t all actions on said
contract "may be brought in and submitted to the
jurisdiction of t h e proper courts in t h e City of Manila,"
b u t at t h e time of suit t h e r e o n all t h e p a r t i e s h a d t h e i r
respective offices or residences within t h e jurisdiction of
t h e Province of Rizal, t h e action t h u s i n s t i t u t e d in t h e
Court of F i r s t I n s t a n c e of Rizal should not be dismissed
on the ground of improper venue as, under such
c i r c u m s t a n c e s , t h e ends of justice can not be served or
promoted by confining t h e situs of t h e action in Manila
(Nicolas vs. Reparations Commission, L-28649, May 21,
1975; see also Capati vs. Ocampo, L-22742, April 30,
1982).
3. The court may declare a g r e e m e n t s on venue as

c o n t r a r y to p u b l i c policy if s u c h s t i p u l a t i o n u n j u s t l y
denies a p a r t y a fair opportunity to file suit in t h e place
designated by the Rules. The court shall take into
124
consideration t h e economic conditions of t h e p a r t i e s , t h e

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

of t h a t venue stipulation, considering t h a t t h e subscriber
h a s sufficient o p p o r t u n i t y to go over s u c h s t i p u l a t i o n
during each time he signed those a g r e e m e n t s , as well as
in the subsequent subscriptions he acquired while
r e m a i n i n g as a s u b s c r i b e r for s o m e t i m e (Pilipino
Telephone Corp. vs. Tecson, G.R. No. 156966, May 7,
2004; cf. DBP vs. National Merchandising Corp., L-22957
& L-23737, Aug. 31, 1971).
5. A stipulation as to t h e venue of a prospective action

does not preclude t h e filing of t h e suit in t h e residence of
t h e plaintiff or t h a t of t h e defendant u n d e r Sec. 2 of t h i s
Rule, in t h e absence of qualifying or restrictive words in
t h e a g r e e m e n t t h a t would indicate t h a t t h e venue can not
be any place o t h e r t h a n t h a t agreed upon by t h e p a r t i e s
(Polytrade Corp. vs. Blanco, L 27033, Oct. 31, 1969),
especially w h e r e t h e venue stipulation w a s imposed by
t h e plaintiff for its own benefit and convenience (Eastern
Assurance & Surety Corp. vs. Cui, et al., infra).
6. The former C o u r t of F i r s t I n s t a n c e of Quezon

City h a d jurisdiction w h e r e t h e d e f e n d a n t electric cor-
poration h a s its principal office in Quezon City, a l t h o u g h
t h e a c t s c o m p l a i n e d of w e r e c o m m i t t e d by its electric
p l a n t i n D a g u p a n City, since c o r p o r a t e d e c i s i o n s a r e
made in Quezon City a n d t h e employees in D a g u p a n City
merely c a r r y out said o r d e r s , hence t h e acts s o u g h t to
be r e s t r a i n e d are being committed in Quezon City
(Dagupan Electric Corp. vs. Paho, et al., L-49520,
Jan. 28, 1980; cf. Limjap vs. Animas, et al., G.R.
No. 53334, Jan. 17, 1985; Olongapo Electric Light &
Power Corp. vs. National Power Corp., et al, L-24912,
April 9, 1987).
7. In actions involving domestic c o r p o r a t i o n s ,

for p u r p o s e s o f v e n u e , w h a t i s c o n t r o l l i n g i s t h e
location of its p r i n c i p a l place of b u s i n e s s s t a t e d in its
articles of incorporation, not t h e b r a n c h office or place of
126
business thereof (Hyatt Elevators and Escalators Corp.

vs. Goldstar Elevators Phils., Inc., G.R. No. 161026
Oct. 24, 2005).
8. W h e r e t h e c h a t t e l mortgage h a d been fully paid,

but t h e m o r t g a g e e still s e n t a telegram d e m a n d i n g pay-
ment from t h e mortgagor, t h e venue for t h e l a t t e r ' s action
for d a m a g e s is not governed by t h e venue stipulation in
the c h a t t e l m o r t g a g e since t h e suit is not based on said
contract b u t on d e f e n d a n t ' s act of s e n d i n g the telegram
(Zoleta vs. Romillo, G.R. No. 58080, Feb. 15, 1982).
9. Since a t h i r d - p a r t y complaint is b u t ancillary to a

main action, t h e r u l e s on jurisdiction and venue do not
apply to it. T h u s , a t h i r d - p a r t y complaint yields to t h e
jurisdiction a n d v e n u e of t h e m a i n action even if said
t h i r d - p a r t y complaint is based on a s e p a r a t e a g r e e m e n t
which specifies a different venue for s u i t s arising from
said a g r e e m e n t (Eastern Assurance & Surety Corp. vs.
Cui, et al., G.R. No. 54452, July 20, 1981).
10. Where only one of t h e two defendants, both being

indispensable p a r t i e s , filed a motion to dismiss for im-
proper v e n u e , while t h e o t h e r filed his a n s w e r without
raising s u c h objection, t h e h e a r i n g should not proceed
against t h e l a t t e r u n t i l t h e objection raised by the
former s h a l l have been resolved (Punzalan vs. Vda. de
Lacsamana, G.R. No. 55729, Mar. 28, 1983).
1 1 . The stipulation in a contract of affreightment to
the effect t h a t said a g r e e m e n t "shall be governed by and
c o n s t r u e d in a c c o r d a n c e w i t h S i n g a p o r e Law, a n d all
d i s p u t e s a r i s i n g ( t ) h e r e u n d e r s h a l l b e subject t o t h e
exclusive j u r i s d i c t i o n of t h e High Court of Singapore"
refers to t h e forum of t h e actions contemplated therein.
It may not be declared invalid on t h e theory t h a t such
a g r e e m e n t would divest Philippine courts of jurisdiction
by a g r e e m e n t of t h e partieB, since w h a t has been agreed
upon was merely t h e venue of the action which may legally
127
be done. However, since t h e defendant did not timely

raise t h a t issue b u t filed two motions to lift t h e writ of
preliminary a t t a c h m e n t and a counterbond therefor,
before it eventually filed a motion to dismiss on the ground
of improper venue, such objection h a s been waived and
the trial court erred in granting the motion and dismissing
t h e case (Phil. International Trading Corp. vs. M.V.
Zileena, et al., G.R. No. 102904, Oct. 30, 1992).
12. The foregoing considerations n o t w i t h s t a n d i n g ,

the S u p r e m e Court, to avoid a miscarriage of justice, h a s
the power to order a change of venue or place of t r i a l in
civil or criminal cases or o t h e r judicial proceeding (see
Sec. 5[4J, Art. VIII, 1987 Constitution; Magsaysay vs.
Magsaysay, et al, L-49847, July 17, 1980).
13. Because of t h e s u p e r v e n t i o n of R.A. No. 7691

{Appendix N) which, inter alia, a m e n d e d t h e jurisdiction
of t h e r e g u l a r t r i a l courts in real actions, p e n d i n g final
action on t h e p r e s e n t revised Rules, t h e S u p r e m e Court
approved in advance and p r o m u l g a t e d t h e p r e s e n t Rule 4
to t a k e effect on A u g u s t 1, 1995, i s s u i n g t h e r e f o r its
A d m i n i s t r a t i v e Circular No. 13-95 on J u n e 20, 1995.
128
RULE 5
U N I F O R M P R O C E D U R E I N TRIAL C O U R T S
S e c t i o n 1. Uniform procedure. — T h e p r o c e d u r e
in the Municipal Trial Courts shall be the same as
i n t h e R e g i o n a l T r i a l C o u r t , e x c e p t (a) w h e r e a
particular-provision expressly or impliedly applies
o n l y t o e i t h e r o f s a i d c o u r t s , o r (b) i n c i v i l c a s e s
g o v e r n e d b y t h e R u l e o n S u m m a r y P r o c e d u r e , (n)
S e c . 2. Meaning of terms. — T h e t e r m " M u n i c i p a l

Trial C o u r t s " a s u s e d i n t h e s e R u l e s s h a l l i n c l u d e
M e t r o p o l i t a n T r i a l C o u r t s , M u n i c i p a l Trial C o u r t s
in Cities, Municipal Trial Courts, and Municipal
Circuit Trial Courts, ( l a )
NOTES
1. The former Rule 6 of t h e s e Rules was expressly

repealed by t h e I n t e r i m or T r a n s i t i o n a l Rules and Guide-
lines p r o m u l g a t e d by t h e S u p r e m e Court effective upon
the implementation of B.P. Blg. 129. Par. 9 of said interim
rules further provided t h a t "(t)he procedure to be observed
in m e t r o p o l i t a n t r i a l courts, municipal t r i a l courts and
municipal circuit t r i a l courts, in all cases and proceedings,
w h e t h e r civil or criminal, shall be t h e same as t h a t to be
observed in t h e regional trial courts." This is now provided
in Sec. 1, with exceptions.
2. It h a s b e e n held t h a t i n t e r p l e a d e r (Rule 62) is
available in inferior courts although they are not bound
to follow strictly t h e procedure therefor as set out for t h e
t h e n C o u r t s of F i r s t I n s t a n c e (Makati Dev. Co. vs.
Tanjuatco, L-26443, Mar. 25, 1969). It is submitted t h a t
since t h e procedure in t h e p r e s e n t Regional Trial Courts
is now applicable to t h e inferior courts, while t h e l a t t e r
129
can t r y i n t e r p l e a d e r a c t i o n s , t h e y m u s t perforce now

observe t h e procedure as provided for t h e Regional Trial
Courts.
3. U n d e r Sec. 22 of B.P. Blg. 129 and P a r . 21(a) of
t h e I n t e r i m Rules and Guidelines, all cases decided by
t h e inferior courts may be appealed to t h e Regional Trial
Courts. It h a s been held t h a t such provisions a r e broad
enough to cover j u d g m e n t s by default, s u m m a r y
judgments and judgments on the pleadings rendered
by inferior c o u r t s . T h e c o n t r a r y d o c t r i n e s in Luzon
Rubber & Manufacturing Co. vs. Estaris, et al. [L-31439,
Aug. 3 1 , 1973] a n d r e i t e r a t e d in Stratchan, et al. vs. CA,
et al. [L-23455, J a n . 27, 1985] a r e t h e r e b y d e e m e d over-
ruled (Guanson vs. Montesclaros, et al., G.R. No. 59330,
June 28, 1983). T h e c o n t r o v e r s y in t h e p a s t on t h i s
point (see Vda. de Hoyo-a, et al. vs. Virata, et al., G.R.
No. 71171, July 23, 1985), which h a s now b e e n s e t at
r e s t , w a s d u e t o t h e fact t h a t , formerly, only d e f a u l t
j u d g m e n t s of t h e Courts of F i r s t I n s t a n c e were appealable
u n d e r t h e t h e n Sec. 2 of Rule 4 1 .
4. W h e r e t h e lower court h a d no jurisdiction over

the case, the Regional Trial Court does not acquire
appellate jurisdiction. However, while the appellant
may assail such jurisdiction on appeal, t h e p a r t i e s may
s u b m i t to t h e original jurisdiction of t h e Regional Trial
Court a n d said court can proceed to try t h e case (Alvir
vs. Vera, L-39338, July 16, 1984). For the present
p r o c e d u r a l rule, see Sec. 8, Rule 40.
5. Formerly, t h e decisions of t h e t h e n C o u r t s of F i r s t
I n s t a n c e , in cases appealed to t h e m from t h e decisions of
t h e inferior courts in t h e exercise of t h e l a t t e r ' s original
jurisdiction, were a p p e a l a b l e to t h e S u p r e m e C o u r t by
c e r t i o r a r i u n d e r Rule 45 if t h e only issue w a s w h e t h e r
t h e conclusion of t h e t h e n C o u r t of F i r s t I n s t a n c e w a s
i n c o n s o n a n c e w i t h law a n d j u r i s p r u d e n c e , h e n c e t h e
issue is consequently a p u r e l y legal q u e s t i o n . W h e r e ,
130
RULE 5 UNIFORM PROCEDURE IN TRIAL COURTS SEC. 2
however, t h e issue w a s w h e t h e r t h e findings of fact of

said C o u r t o f F i r s t I n s t a n c e w e r e s u p p o r t e d b y s u b -
s t a n t i a l evidence, or such question w a s raised t o g e t h e r
with a purely legal issue, a petition for review should be
brought to t h e Court of Appeals in t h e form prescribed in
its Resolution of A u g u s t 12, 1971. It w a s opined t h e r e i n
t h a t a l t h o u g h Sec. 22 of B.P. Blg. 129 a b a n d o n e d t h e
"substantial evidence" rule formerly provided u n d e r
R.A. 6031 in d e t e r m i n i n g w h e t h e r to give due course to
the petition, t h e question of w h e r e to file said petition,
as above s t a t e d , h a s not been affected by B.P. Blg. 129
(Torres, et al. vs. Yu, et al, L-42626, Dec. 18, 1982; cf.
Mania vs. Vda. de Segarra, et al, L-48257, Aug. 24, 1984).
U n d e r t h e s e revised Rules, a p p e a l s from a decision
of t h e Regional T r i a l Court r e n d e r e d in t h e exercise of its
a p p e l l a t e j u r i s d i c t i o n s h a l l be b r o u g h t to t h e C o u r t of
Appeals r e g a r d l e s s of t h e issues involved. T h u s , Sec. 2
of Rule 42 r e q u i r e s t h a t in such a p p e a l t h e petition for
review to t h e C o u r t of Appeals m u s t set forth, inter alia,
"the specification of t h e e r r o r s of fact or law, or both,
allegedly committed by t h e Regional Trial Court."
6. W i t h respect to t h e system of amicably settling

disputes at t h e barangay level and which, in proper cases,
is a p r e r e q u i s i t e for t h e i n s t i t u t i o n of an action in court
u n d e r P.D. 1508, g e n e r a l l y referred to as t h e Kataru-
ngang Pambarangay d e c r e e , see n o t e s u n d e r Sec. 1,
Rule 123. Sec. 2 of said P.D. 1508 provided for t h e cases
within t h e jurisdiction of t h e lupon, while Sec. 3 thereof
d e t e r m i n e d t h e v e n u e o f t h e p r o c e e d i n g s , i.e., t h e
barangay w h e r e t h e p r o c e e d i n g s s h a l l be c o n d u c t e d
(Agbayani vs. Belen, et al, G.R. No. 65629, Nov. 24, 1986).
See, however, t h e corresponding provisions of the Local
G o v e r n m e n t C o d e of 1 9 9 1 (R.A. 7160) r e p r o d u c e d
thereunder.
7. Excepted from t h e uniform procedure as s t a t e d
in this Rule a r e t h e cases covered by t h e Rule on Sum-
131
m a r y Procedure promulgated by t h e S u p r e m e Court for

inferior courts effective August 1, 1983, a n d last revised
with effectivity on November 15, 1991, which w i t h respect
to civil cases provides as follows:
" P u r s u a n t to Section 36 of t h e J u d i c i a r y Reorga-
nization Act o f 1980 ( B . P . B l g . 129) and t o achieve
an expeditious and inexpensive d e t e r m i n a t i o n of t h e
cases referred to herein, t h e Court Resolved to pro-
m u l g a t e t h e following Revised Rule o n S u m m a r y
Procedure:
I.
Applicability
S E C T I O N 1. Scope. — This rule shall govern t h e
s u m m a r y procedure in the Metropolitan Trial Courts,
t h e Municipal Trial Courts in Cities, t h e Municipal
Trial Courts, a n d t h e Municipal Circuit Trial C o u r t s
in t h e following cases falling w i t h i n t h e i r jurisdiction:
A. Civil Cases:
(1) All c a s e s o f f o r c i b l e e n t r y a n d u n l a w f u l
d e t a i n e r irrespective of t h e a m o u n t of d a m a g e s or
u n p a i d r e n t a l s sought to be recovered. W h e r e attor-
ney's fees a r e a w a r d e d , t h e s a m e s h a l l not exceed
t w e n t y t h o u s a n d pesos (1*20,000.00).
(2) All o t h e r civil cases, except p r o b a t e proceed-
ings, w h e r e t h e total a m o u n t of t h e p l a i n t i f f s claim
does not exceed t e n t h o u s a n d p e s o s (F10.000.00),
exclusive of i n t e r e s t a n d costs.
X X X
II.
Civil Cases
SEC. 3. Pleadings. —
A. Pleadings allowed. — T h e only p l e a d i n g s
allowed to be filed a r e t h e complaints, compulsory
132
RULE 5 U N I F O R M P R O C E D U R E IN TRIAL COURTS SEC. 2
counterclaims and cross-claims pleaded in t h e answer,

and the answers thereto.
B. Verification. — All pleadings shall be verified.
S E C . 4. Duty of court. — After t h e court deter-
m i n e s t h a t t h e case falls u n d e r s u m m a r y procedure,
i t m a y , from a n e x a m i n a t i o n o f t h e a l l e g a t i o n s
t h e r e i n a n d such evidence as may be attached thereto,
dismiss the case o u t r i g h t on any of the grounds
a p p a r e n t therefrom for t h e dismissal of a civil action.
If no ground for dismissal is found, it shall forth-
with issue summons which shall state t h a t the
s u m m a r y procedure u n d e r this Rule shall apply.
S E C . 5. Answer. — W i t h i n t e n (10) d a y s from
s e r v i c e of s u m m o n s , t h e d e f e n d a n t s h a l l file his
a n s w e r to t h e complaint a n d serve a copy thereof on
t h e plaintiff. Affirmative a n d negative defenses not
pleaded t h e r e i n shall be deemed waived, except for
lack of jurisdiction over t h e subject m a t t e r . Cross-
claims a n d compulsory counterclaims not a s s e r t e d in
t h e a n s w e r shall be considered barred. The a n s w e r
to c o u n t e r c l a i m s or cross-claims shall be filed and
served within t e n (10) days from service of the answer
in which they a r e pleaded.
S E C . 6. Effect of failure to answer. — Should t h e
d e f e n d a n t fail to a n s w e r t h e complaint w i t h i n t h e
period above provided, t h e court, motu proprio, or on
motion of t h e plaintiff, shall r e n d e r j u d g m e n t as may
be w a r r a n t e d by t h e facts alleged in the complaint
a n d limited to w h a t is prayed for therein: Provided,
however, t h a t t h e court may in its discretion reduce
t h e a m o u n t of d a m a g e s and attorney's fees claimed
for being excessive or otherwise unconscionable. This
is w i t h o u t prejudice to the applicability of Section 4,
Rule 18 of t h e Rules of Court, if t h e r e are two or more
defendants.
133
SEC. 7. Preliminary conference; appearance of

parties. — Not later t h a n t h i r t y (30) days after the
last a n s w e r is filed, a preliminary conference shall be
held. The rules on pre-trial in ordinary cases shall
be applicable to t h e preliminary conference unless
inconsistent with the provisions of t h i s Rule.
The failure of t h e plaintiff to a p p e a r in t h e pre-
liminary conference shall be a cause for t h e dismissal
of his complaint. The defendant who a p p e a r s in t h e
absence of t h e plaintiff shall be entitled to j u d g m e n t
on his c o u n t e r c l a i m in accordance w i t h Section 6
hereof. All cross-claims shall be dismissed.
If a sole defendant shall fail to appear, t h e plain-
tiff shall be entitled to j u d g m e n t in accordance with
Section 6 hereof. This Rule shall not apply w h e r e
one of two or more defendants sued u n d e r a common
cause of action who had pleaded a common defense
shall a p p e a r at t h e p r e l i m i n a r y conference.
S E C . 8. Record of preliminary conference. —
Within five (5) days after t h e t e r m i n a t i o n of t h e pre-
liminary conference, t h e court shall issue an order
s t a t i n g t h e m a t t e r s t a k e n u p t h e r e i n , including b u t
not limited to:
(a) W h e t h e r t h e p a r t i e s have arrived a t a n ami-
cable s e t t l e m e n t , a n d if so, t h e t e r m s thereof;
(b) The stipulations or admissions e n t e r e d into
by t h e p a r t i e s ;
(c) W h e t h e r , on t h e basis of t h e pleadings a n d
t h e s t i p u l a t i o n s a n d admissions m a d e by t h e p a r t i e s ,
j u d g m e n t may be rendered without the need of
f u r t h e r p r o c e e d i n g s , i n which e v e n t t h e j u d g m e n t
s h a l l b e r e n d e r e d w i t h i n t h i r t y (30) d a y s from
issuance of t h e order;
(d) A clear specification of m a t e r i a l facts which
r e m a i n controverted; a n d
134
RULE 5 U N I F O R M P R O C E D U R E IN TRIAL COURTS
(e) S u c h o t h e r m a t t e r s i n t e n d e d to expedite t h e
disposition of t h e case.
SEC. 9. Submission of affidavits and position
papers. — W i t h i n t e n (10) days from receipt of t h e
o r d e r m e n t i o n e d in t h e next preceding section, t h e
p a r t i e s shall s u b m i t t h e affidavits of t h e i r witnesses
a n d o t h e r evidence on t h e factual issues defined in
t h e order, t o g e t h e r w i t h t h e i r position p a p e r s s e t t i n g
forth t h e law a n d t h e facts relied upon by t h e m .
S E C . 10. Rendition of judgment. — W i t h i n
t h i r t y (30) days after receipt of t h e last affidavits and
position p a p e r s , or t h e expiration of t h e period for
filing t h e s a m e , t h e court shall r e n d e r j u d g m e n t .
However, should t h e court find it necessary to
clarify c e r t a i n m a t e r i a l facts, it may, d u r i n g t h e said
period, issue an order specifying t h e m a t t e r s to be
clarified, a n d r e q u i r e t h e p a r t i e s to s u b m i t affidavits
or o t h e r evidence on t h e said m a t t e r s within t e n (10)
days from receipt of said order. J u d g m e n t shall be
r e n d e r e d w i t h i n fifteen (15) days after t h e receipt of
t h e l a s t clarificatory affidavits, or t h e expiration of
t h e period for filing t h e s a m e .
T h e c o u r t s h a l l not r e s o r t to clarificatory pro-
cedure to gain time for t h e rendition of t h e j u d g m e n t .
X X X
IV.
Common Provisions
SEC. 18. Referral to Lupon. — Cases requiring
referral to t h e Lupon for conciliation u n d e r t h e pro-
visions of P r e s i d e n t i a l Decree No. 1508 w h e r e t h e r e
is no showing of compliance with such requirement,
s h a l l be d i s m i s s e d w i t h o u t prejudice, a n d may be
r e v i v e d only a f t e r s u c h r e q u i r e m e n t s h a l l h a v e
been complied with, x x x.
135
SEC. 19. Prohibited pleadings and motions. —

The following pleadings, motions, or petitions shall
not be allowed in t h e cases covered by this Rule:
(a) Motion to dismiss the complaint x x x except
on t h e ground of lack of jurisdiction over the subject
matter, or failure to comply with the preceding section;
(b) Motion for a bill of p a r t i c u l a r s ;
(c) Motion for new trial, or for reconsideration of
a j u d g m e n t , or for reopening of trial;
(d) Petition for relief from j u d g m e n t ;
(e) Motion for extension of time to file pleadings,
affidavits or any other paper;
(0 Memoranda;
(g) P e t i t i o n for c e r t i o r a r i , m a n d a m u s , or pro-
hibition a g a i n s t any interlocutory o r d e r issued by
t h e court;
(h) Motion to declare t h e defendant in default;
(i) Dilatory motions for postponement;
0) Reply;
(k) T h i r d - p a r t y complaints;
(1) I n t e r v e n t i o n s .
S E C . 2 0 . Affidavits. — The affidavits r e q u i r e d
to be s u b m i t t e d u n d e r t h i s Rule shall s t a t e only facts
of direct p e r s o n a l knowledge of t h e affiants which a r e
admissible in evidence, and shall show their
competence to testify to t h e m a t t e r s s t a t e d t h e r e i n .
A violation of t h i s r e q u i r e m e n t may subject the
p a r t y or t h e counsel who s u b m i t s t h e s a m e to dis-
ciplinary action, a n d shall be cause to expunge the
i n a d m i s s i b l e affidavit or p o r t i o n t h e r e o f from the
record.
S E C . 2 1 . Appeal. — The j u d g m e n t or final order
shall be appealable to t h e a p p r o p r i a t e regional t r i a l
court which shall decide t h e s a m e in accordance with
Section 22 of B a t a s P a m b a n s a Blg. 129. The decision
of t h e regional t r i a l court in civil cases governed by
t h i s R u l e , i n c l u d i n g forcible e n t r y a n d u n l a w f u l
136
RULE 5 U N I F O R M P R O C E D U R E IN TRIAL C O U R T S SEC. 2
d e t a i n e r , s h a l l b e i m m e d i a t e l y executory, w i t h o u t
prejudice to a further appeal t h a t may be t a k e n
therefrom. Section 10 of Rule 70 shall be deemed
repealed.
SEC. 22. Applicability of the regular rules. —
T h e r e g u l a r p r o c e d u r e p r e s c r i b e d in t h e Rules of
C o u r t s h a l l apply to t h e special cases herein provided
for in a suppletory capacity insofar as they a r e not
inconsistent h e r e w i t h .
S E C . 2 3 . Effectivity. — T h i s r e v i s e d Rule on
S u m m a r y P r o c e d u r e s h a l l be effective on Novem-
ber 15, 1991."
8. New court r u l e s apply to pending cases only

with reference to proceedings t h e r e i n which t a k e place
after t h e d a t e of t h e i r effectivity. They do not apply to
the e x t e n t t h a t in t h e opinion of t h e court t h e i r applica-
tion would not be feasible or would work injustice, in
which e v e n t t h e former p r o c e d u r e s h a l l apply. T h u s ,
where t h e application of t h e Rule on S u m m a r y Procedure
will m e a n t h e dismissal of t h e appeal of t h e p a r t y , t h e
same should not apply since, after all, t h e procedure they
availed of w a s also allowed u n d e r t h e Rules of C o u r t
(Laguio, et al. vs. Garnet, et al., G.R. No. 74903, Mar. 21,
1989).
9. While Sec. 6 (now, Sec. 7) of t h e Rule on Sum-

mary Procedure makes a preliminary conference
m a n d a t o r y , it does not logically follow t h a t the absence
thereof would necessarily render nugatory the proceedings
had in t h e court below. A preliminary conference u n d e r
this Rule is akin a n d similar to a pre-trial u n d e r Rule 20,
both provisions being e s s e n t i a l l y designed to p r o m o t e
amicable s e t t l e m e n t or to simplify t h e trial. Proceedings
conducted w i t h o u t pre-trial or a legally defective pre-trial
have been voided because e i t h e r of t h e p a r t i e s t h e r e t o
suffered s u b s t a n t i a l prejudice thereby or were denied due
process. T h u s , unless t h e r e is a showing of s u b s t a n t i a l
137
RULE S REMEDIAL LAW C O M P E N D I U M
prejudice caused to a p a r t y , t h e i n a d v e r t e n t failure to

c a l e n d a r for a n d c o n d u c t a p r e - t r i a l o r p r e l i m i n a r y
conference cannot r e n d e r t h e proceedings illegal or void
ab initio. A p a r t y ' s failure to object to t h e absence of a
p r e l i m i n a r y conference, despite opportunity to do so, is
deemed a waiver of t h e right t h e r e t o , especially w h e r e
t h e p a r t y h a d a l r e a d y s u b m i t t e d to t h e j u r i s d i c t i o n of
t h e t r i a l court (Martinez, et al. vs. De la Merced, et al.,
G.R. No. 82039, June 20, 1989).
10. E x c e p t i n c a s e s c o v e r e d b y t h e a g r i c u l t u r a l
t e n a n c y laws or w h e n the law o t h e r w i s e expressly
p r o v i d e s , all a c t i o n s for forcible e n t r y a n d u n l a w f u l
d e t a i n e r , irrespective of t h e a m o u n t of d a m a g e s or u n p a i d
r e n t a l s sought to be recovered, a r e now governed by t h e
s u m m a r y procedure provided in revised Rule 70.
138
P R O C E D U R E I N R E G I O N A L TRIAL C O U R T S
RULE 6
KINDS OF PLEADINGS
S e c t i o n 1. Pleadings defined. — P l e a d i n g s a r e t h e
written statements of the respective claims and
d e f e n s e s o f t h e p a r t i e s s u b m i t t e d t o t h e c o u r t for
appropriate judgment, (la)
S e c . 2. Pleadings allowed. — T h e c l a i m s of a p a r t y
a r e asserted in a complaint, counterclaim, cross-
claim, third (fourth, etc.)-party complaint or
complaint-in-intervention.
The d e f e n s e s of a party are alleged in the a n s w e r
to the pleading asserting a claim against him.
A n a n s w e r m a y b e r e s p o n d e d t o b y a r e p l y , (n)
NOTE
1. In a broad sense, the term "pleadings" includes

all p a p e r s filed, excluding evidentiary m a t t e r s , from the
complaint down to the j u d g m e n t . Documents a t t a c h e d to
the p l e a d i n g s a n d m a d e a p a r t thereof a r e considered
evidence a n d also p a r t of t h e pleadings (Asia Banking
Corporation vs. Olsen & Co., 48 Phil. 529). A bill of
particulars constitutes p a r t of the pleading that it
s u p p l e m e n t s (Sec. 6, Rule 12). A covering l e t t e r for a
pleading is not p a r t of the l a t t e r (Clorox Co. vs. Director
of Patents, L-19531, Aug. 10, 1967).
S e c . 3 . Complaint. — T h e c o m p l a i n t i s t h e
pleading alleging the plaintiffs cause or causes of
action. The n a m e s and residences of the plaintiff
and d e f e n d a n t m u s t b e s t a t e d i n t h e c o m p l a i n t . (3a)
139
RULE 6 R E M E D I A L LAW C O M P E N D I U M S E C S . 4-5
NOTES
1. The provisions of t h i s section with r e g a r d to a

complaint are also t r u e with and are applicable to other
initiatory pleadings, as well as to petitions filed in the
t r i a l or appellate courts, except t h a t , in t h e l a t t e r case, it
is t h e act of t h e lower court which is complained of t h a t
has to be alleged, instead of a cause of action as technically
understood.
2. The jurisdiction of the court a n d t h e n a t u r e of t h e
action a r e d e t e r m i n e d by t h e a v e r m e n t s in t h e complaint.
The p r a y e r for relief is not controlling on t h e court and
is merely advisory as to t h e n a t u r e of t h e action, as it is
t h e a v e r m e n t s in t h e complaint which control. See notes
u n d e r Sec. 2, Rule 7.
S e c . 4. Answer. — An a n s w e r is a p l e a d i n g in
w h i c h a defending party sets forth his defenses.
(4a)
S e c . 5 . Defenses. — D e f e n s e s m a y e i t h e r b e
negative or affirmative.
(a) A n e g a t i v e d e f e n s e i s t h e s p e c i f i c d e n i a l o f
t h e material fact or facts alleged in t h e p l e a d i n g of
the claimant essential to his cause or causes of
action.
(b) An a f f i r m a t i v e d e f e n s e is an a l l e g a t i o n of a
new matter which, while hypothetically admitting
the material allegations in the pleading of the
c l a i m a n t , w o u l d n e v e r t h e l e s s p r e v e n t or bar
recovery by him. The affirmative defenses include
fraud, statute of limitations, release, payment,
illegality, statute of frauds, estoppel, former
recovery, discharge in bankruptcy, and any other
m a t t e r b y w a y o f c o n f e s s i o n a n d a v o i d a n c e . (5a)
140
RULE 6 KINDS OF PLEADING S E C S . 4-5
NOTES
1. Section 5(a) defines a "negative defense" as the

specific denial of t h e m a t e r i a l allegations in the complaint.
A d e n i a l is not specific j u s t b e c a u s e it is so qualified
(Agton vs. CA, et al., L-37309, Mar. 30, 1982), a n d t h i s is
especially t r u e w h e r e a b l a n k e t denial is made of all t h e
averments of t h e complaint i n s t e a d of dealing particularly
with e a c h . S u c h a g e n e r a l d e n i a l will be d e e m e d an
admission of t h e a v e r m e n t s in t h e complaint.
2. To be considered a specific denial, Rule 8 provides:

"Sec. 10. Specific denial. — The defendant m u s t
specify e a c h m a t e r i a l allegation of fact t h e t r u t h of
which he does not a d m i t and, w h e n e v e r practicable,
s h a l l s e t forth t h e s u b s t a n c e o f t h e m a t t e r s upon
which he relies to s u p p o r t his denial. Where a
d e f e n d a n t d e s i r e s to deny only a p a r t of an a v e r m e n t ,
he shall specify so much of it as is t r u e and m a t e r i a l
and shall deny only the r e m a i n d e r . Where a
defendant is without knowledge or information
sufficient to form a belief as to t h e t r u t h of a m a t e r i a l
a v e r m e n t m a d e in t h e complaint, he shall so s t a t e ,
and t h i s s h a l l have t h e effect of a denial."
3. Sec. 5(b) defines a n d illustrates t h e so-called
affirmative defenses. The e n u m e r a t i o n is not exclusive.
Thus, tea judicata (Fernandez vs. De Castro, 48 Phil. 123),
ultra Mroa aoto of a oorporation, or lack of a u t h o r i t y of a
person assuming to act for the corporation (Ramirez vs.
Orientalist Co., 38 Phil. 634), laches (Gov't of the P.I. vs.
Wagner, et al., 49 Phil. 944), a n d u n c o n s t i t u t i o n a l i t y
(Santiago vs. Far Eastern Broadcasting Co., 73 Phil. 408)
are affirmative d e f e n s e s which should be specifically
pleaded. F u r t h e r m o r e , if no motion to dismiss had been
filed, a n y of t h e g r o u n d s t h e r e f o r m a y be r a i s e d as
affirmative defenses in t h e a n s w e r (Sec. 6, Rule 16).
141
RULE 6 REMEDIAL LAW C O M P E N D I U M S E C S . 6-7
S e c . 6. Counterclaim. — A c o u n t e r c l a i m is a n y
claim w h i c h a defending party may have against
a n o p p o s i n g p a r t y . (6a)
S e c . 7. Compulsory counterclaim.—A c o m p u l s o r y
counterclaim is one which, being cognizable by the
regular courts of justice, arisesôut ofjor is
connected with the transaction or occurrence
constituting the subject matter of the opposing
party's c l a i m and d o e s not r e q u i r e for its
adjudication the presence of third parties of w h o m
the court cannot acquire jurisdiction. Such a
counterclaim must be within the jurisdiction of the
court both as to the a m o u n t and the nature thereof,
except that in an original action before the
Regional Trial Court, the c o u n t e r c l a i m may be
c o n s i d e r e d c o m p u l s o r y r e g a r d l e s s o f t h e a m o u n t , (n)
NOTES
1. In American law from which we have derived t h e

concept of a counterclaim, it is considered as in effect a
new s u i t in which t h e p a r t y n a m e d as t h e d e f e n d a n t is
t h e p l a i n t i f f a n d t h e plaintiff b e c o m e s t h e d e f e n d a n t
(Roberts Min. & Mill Co. vs. Schroder, CCA. Nev., 95 F.
2d 522). It is b u t a n o t h e r n a m e for a cross-petition (Clark
vs. Duncanson, 79 Okl. 180, 192 P. 806, 16 A.L.R. 450) or
is a s u b s t i t u t e for a cross-bill in equity (Vidal vs. South
American Securities Co., CCA. N.Y., 276 F. 855). The
t e r m is b r o a d e r in m e a n i n g t h a n set-off or r e c o u p m e n t ,
and includes t h e m both (Williams vs. Williams, 192 N.C.
405, 135 S.E. 39; Aetna Life Insurance Co. vs. Griffin,
200 N.C 251, 156 S.E. 515).
2. A c l a r i f i c a t i o n h a s b e e n i n c o r p o r a t e d in t h e
d e f i n i t i o n of a c o m p u l s o r y c o u n t e r c l a i m by r e a s o n of
d i v e r g e n t views i n t h e p a s t a s t o w h e t h e r o r not t h e
a m o u n t involved in t h e counterclaim should be t a k e n into
142
RULE 6 KINDS OF PLEADINGS S E C S . 6-7
account w h e n such a counterclaim is pleaded in t h e Re-

gional Trial Court, in t h e s a m e m a n n e r as t h e rule on
j u r i s d i c t i o n a l a m o u n t r e q u i r e d for a c o m p l a i n t filed
therein. The present formulation makes it clear t h a t
such a counterclaim may be e n t e r t a i n e d by t h e Regional
Trial Court r e g a r d l e s s of t h e a m o u n t involved provided
that, in addition to t h e other r e q u i r e m e n t s , it is cognizable
by t h e r e g u l a r c o u r t s of j u s t i c e . T h u s , for i n s t a n c e , a
claim a r i s i n g from a labor dispute, a l t h o u g h w i t h i n t h e
jurisdictional a m o u n t provided for Regional Trial Courts,
may not be raised as a counterclaim t h e r e i n as, u n d e r t h e
law presently in force, t h e same should be filed in t h e labor
t r i b u n a l s or agencies. The s a m e is t r u e with respect to
other claims jurisdiction over which is vested exclusively
in the quasi-judicial agencies.
3. As t h u s clarified, counterclaims a r e classified a n d

distinguished as follows:
A compulsory c o u n t e r c l a i m is one which arises out
of or is n e c e s s a r i l y c o n n e c t e d w i t h t h e t r a n s a c t i o n or
occurrence t h a t is t h e s u b j e c t - m a t t e r of t h e opposing
party's claim. If it is w i t h i n t h e jurisdiction of a r e g u l a r
court of j u s t i c e a n d it does not r e q u i r e for its adjudi-
cation t h e presence of t h i r d p a r t i e s over whom t h e court
cannot acquire jurisdiction, it is b a r r e d if not set up in
the action (see Sec. 2, Rule 9). This is also known as a
"recoupment" (Lopez us. Glories 40 Phil, 26).
A permissive counterclaim does not arise out of nor
is it necessarily connected w i t h the subject-matter of t h e
opposing p a r t y ' s claim. It is not b a r r e d even if not set up
in the action. This is also known as a "set-off (Lopez vs.
Gloria, supra).
4. Accordingly, even if t h e counterclaim arises out
of t h e s u b j e c t - m a t t e r of t h e opposing p a r t y ' s claim but
it is not w i t h i n t h e jurisdiction of the regular courts of
justice, or it r e q u i r e s for its adjudication the presence of
third p a r t i e s over whom the court cannot acquire
143
jurisdiction, it is considered as only a permissive counter-

claim a n d is not b a r r e d even if not set up in t h e action
(see also Sec. 2, Rule 9).
5. A counterclaim is, therefore, compulsory if (a) it
arises out of, or is necessarily connected with, t h e t r a n s -
action or occurrence which is t h e s u b j e c t - m a t t e r of t h e
o p p o s i n g p a r t y ' s claim; (b) it does not r e q u i r e for its
adjudication t h e presence of t h i r d p a r t i e s of w h o m t h e
court c a n n o t acquire jurisdiction; a n d (c) subject to t h e
qualification on t h e jurisdictional a m o u n t w i t h r e g a r d to
c o u n t e r c l a i m s r a i s e d in t h e Regional T r i a l C o u r t s , t h e
court h a s j u r i s d i c t i o n to e n t e r t a i n t h e claim. While a
n u m b e r of criteria have been advanced for t h e d e t e r m i -
n a t i o n of w h e t h e r t h e c o u n t e r c l a i m is c o m p u l s o r y or
permissive, t h e "one compelling t e s t of compulsoriness"
is t h e logical relationship b e t w e e n t h e claim alleged in
t h e complaint a n d t h a t in t h e counterclaim, i.e., w h e r e
s e p a r a t e t r i a l s of e a c h of t h e r e s p e c t i v e c l a i m s would
involve a s u b s t a n t i a l d u p l i c a t i o n of effort or t i m e by
t h e p a r t i e s a n d t h e courts, a s w h e r e they involve m a n y
of t h e s a m e factual and/or legal issues (Quintanilla vs.
CA, et al., G.R. No. 101747, Sept. 24, 1997).
In Alday vs. FGU Insurance Corp. (G.R. No. 138822,
J a n . 23, 2001), t h e S u p r e m e Court r e i t e r a t e d t h e c r i t e r i a
in d e t e r m i n i n g w h e t h e r a counterclaim is compulsory or
permissive, t h a t is, w h e t h e r or not (I) t h e issues of fact
and law raised by the claim and c o u n t e r c l a i m are
essentially t h e s a m e , (2) res judicata would b a r a sub-
s e q u e n t s u i t or defendant's claim a b s e n t t h e compulsory
c o u n t e r c l a i m r u l e , (3) s u b s t a n t i a l l y t h e s a m e evidence
s u p p o r t o r r e f u t e t h e claim a n d t h e c o u n t e r c l a i m , o r
(4) t h e r e is a logical relation b e t w e e n t h e claim a n d t h e
c o u n t e r c l a i m (citing Valencia vs. CA, et al. [263 SCRA
275J). See also Tan vs. Kaakbay Finance Corp., et al.,
G.R. No. 146595, June 20, 2003, a n d c a s e s d i s c u s s e d
therein.
144
RULE 6 KINDS OF PLEADINGS S E C S . 6-7
6. An after-acquired counterclaim is not barred, even

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

sory counterclaim cannot be declared in default on such
counterclaim. Where t h e complaint is for consolidation
because t h e period for redemption had expired and the
145
counterclaim is for reformation on t h e ground t h a t the

document was really a mortgage, the inconsistent
allegations in t h e complaint s t a n d as an a n s w e r to t h e
counterclaim (Gojo vs. Goyola, L-26768, Oct. 30, 1970).
10. A counterclaim or cross-claim m u s t be a n s w e r e d
w i t h i n 10 days from service (Sec. 4, Rule 11). W h e r e t h e
p a r t y is in default on said counterclaim or cross-claim,
t h e court may r e n d e r j u d g m e n t g r a n t i n g such relief as
the pleading may w a r r a n t or require the claimant to
s u b m i t evidence (Sec. 3, Rule 9).
1 1 . Although t h e G o v e r n m e n t is generally i m m u n e
from suit, if it files an action a g a i n s t a p r i v a t e p a r t y , it
s u r r e n d e r s its privileged position and t h e d e f e n d a n t may
validly file a c o u n t e r c l a i m a g a i n s t it (Froilan vs. Pan
Oriental Shipping Co., 95 Phil. 905).
12. It is not proper to allow a counterclaim to be filed
a g a i n s t a lawyer who h a s filed a complaint for his client
and is merely his r e p r e s e n t a t i v e in court, not a plaintiff
or c o m p l a i n a n t in t h e case, since such a procedure would
r e s u l t in mischievous consequences. A lawyer owes his
client e n t i r e devotion to his genuine i n t e r e s t , w a r m zeal
in t h e m a i n t e n a n c e a n d defense of his r i g h t s , a n d t h e
exertion of his u t m o s t l e a r n i n g a n d ability. He cannot
properly a t t e n d to his d u t i e s if, in t h e s a m e case, he is
k e p t busy defending himself. Where t h e lawyer acts in
t h e n a m e of a client, t h e c o u r t s h o u l d not p e r m i t his
being impleaded as an additional p a r t y d e f e n d a n t in t h e
c o u n t e r c l a i m in t h e very s a m e case w h e r e he is acting
only as a counsel. Any claim for alleged d a m a g e s or o t h e r
causes of action a g a i n s t h i m should be filed in an entirely
s e p a r a t e a n d d i s t i n c t civil a c t i o n (Chavez, etc. vs.
Sandiganbayan, et al., G.R. No. 91391, Jan. 24, 1991).
S e c . 8. Cross-claim. — A c r o s s - c l a i m is a n y c l a i m
by one party against a co-party arising out of the
146
RULE 6 KINDS OF PLEADINGS SECS. 9-10
transaction or occurrence that is the subject matter

either of the original action or of a counterclaim
therein. Such cross-claim may include a claim that
the party against w h o m it is asserted is or may be
l i a b l e to t h e c r o s s - c l a i m a n t for all or p a r t of a c l a i m
asserted in the action against the cross-claimant.
(7)
NOTES
1. A cross-claim differs from a counterclaim in t h a t

the former is filed a g a i n s t a co-party a n d a cross-claim
always arises out of t h e t r a n s a c t i o n or occurrence t h a t is
the s u b j e c t - m a t t e r e i t h e r of t h e original action or of a
counterclaim t h e r e i n . A cross-claim which is not set up
in t h e action is b a r r e d , except w h e n it is outside t h e
jurisdiction of t h e court or if t h e court cannot acquire
jurisdiction over third p a r t i e s whose presence is necessary
for t h e adjudication of said cross-claim (Sec. 8 of this Rule;
Sec. 2, Rule 9). The l a t t e r case is w h a t some w r i t e r s call
a permissive cross-claim.
2. The dismissal of t h e complaint carries with it the
dismissal of a cross-claim which is purely defensive, but
not a cross-claim seeking affirmative relief (Torres, et al.
vs. CA, et al., L-25889, Jan. 12, 1973).
S e c . 9. Counter-counterclaims and counter-cross-

claims. — A c o u n t e r c l a i m m a y be a s s e r t e d a g a i n s t
an original counter-claimant.
A c r o s s - c l a i m m a y also be filed a g a i n s t an
o r i g i n a l c r o s s - c l a i m a n t , (n)
S e c . 10. Reply. — A reply is a p l e a d i n g , t h e office

or funetien of which i s to d e n y , o r a l l e g e f a c t s i n
d e n i a l or avoidance of new m a t t e r s a l l e g e d by w a y
of defense in the answer a n d t h e r e b y j o i n or m a k e
issue as te aueh new m a t t e r s . If a p a r t y d o e s n o t
147
RULE 6 REMEDIAL LAW C O M P E N D I U M SECS. 9-10
file s u c h r e p l y , all t h e n e w m a t t e r s a l l e g e d i n t h e
a n s w e r a r e d e e m e d c o n t r o v e r t e d , '-h ^pP
If the plaintiff wishes to interpose any claims
arising out of the new matters so alleged, such
claims shall be set forth in an a m e n d e d or
s u p p l e m e n t a l c o m p l a i n t . (11)
NOTES
1. The p r i m a r y purpose of t h e reply is to join issues

with new m a t t e r s raised in t h e a n s w e r and t h e r e b y au-
thorize t h e p l e a d e r of t h e reply to introduce evidence on
said new issues.
2. T h e filing of t h e reply is o p t i o n a l as t h e new
matters raised in the answer are deemed controverted
even w i t h o u t a reply. Where t h e p a r t y desires to file a
reply, he m u s t n e v e r t h e l e s s do so w i t h i n 10 days from
service of t h e pleading responded to (Sec. 6, Rule 11).
3. As t h e n formulated, it was believed t h a t in t h e

following i n s t a n c e s , t h e filing of a reply w a s compulsory
a n d m u s t be filed w i t h i n t h e said 10-day period:
(a) W h e r e t h e a n s w e r alleges t h e defense of u s u r y
in which case a reply u n d e r o a t h is required, otherwise
t h e allegations of u s u r y a r e deemed a d m i t t e d (Sec. 11,
Rule 8); a n d
(b) W h e r e t h e a n s w e r i s b a s e d o n a n a c t i o n a b l e
d o c u m e n t in which case a verified reply is n e c e s s a r y ,
otherwise the genuineness and due execution of said
actionable document are generally deemed admitted
(Sec. 8, Rule 8).
With respect to p a r . (a) on usury, t h e view t h a t all
a l l e g a t i o n s of u s u r y h a d to be d e n i e d specifically a n d
u n d e r o a t h w a s e n g e n d e r e d by t h e fact t h a t t h e former
Sec. 1 of Rule 9, in m a k i n g t h e r e q u i r e m e n t for such
sworn denial u n d e r pain of admission of t h e allegations
148
RULE 6 KINDS OF PLEADINGS SECS. 9-10
on usury, did not m a k e any distinction as to t h e pleadings

involved. However, in Liam Law vs. Olympic Sawmill,
et al. (L-30771, May 26, 1984), it was held t h a t p u r s u a n t
to Sec. 9 of t h e U s u r y Law, t h e first abovecited instance
r e q u i r i n g denial of allegations of u s u r y u n d e r o a t h does
not apply to a case w h e r e it is t h e defendant, not t h e
plaintiff, who is alleging usury.
Accordingly, Sec. 11 of Rule 8 now e x p r e s s e s t h a t
specific r e q u i r e m e n t a n d provides t h a t "(a)llegations of
u s u r y in a c o m p l a i n t to recover u s u r i o u s i n t e r e s t a r e
deemed a d m i t t e d if not denied u n d e r oath." Hence, if t h e
allegation of u s u r y is contained in the defendant's
answer, for i n s t a n c e , by way of defense to a complaint
for a s u m of money, it is not necessary for plaintiff to file
a reply t h e r e t o in o r d e r to deny t h a t allegation u n d e r
oath.
It is believed, however, t h a t if such allegation was
made by t h e defendant in a counterclaim in t h a t action,
it would be necessary for plaintiff, in order to controvert
the s a m e , to m a k e a specific d e n i a l u n d e r o a t h in t h e
answer to such counterclaim since t h e latter, after all, is
in t h e n a t u r e of a counter-complaint of t h e defendant.
In fact, u n d e r Sec. 1, Rule 3, t h e t e r m "plaintiff may refer
to t h e claiming p a r t y , t h e counter-claimant, t h e cross-
claimant, or t h e t h i r d (fourth, etc.) party-plaintiff.
The distinction here proposed is due to the fact t h a t
a c o u n t e r c l a i m i n v o l v e s a c a u s e of a c t i o n a n d s e e k s
affirmative relief, while a defense merely defeats t h e
p l a i n t i f f s cause of action by a denial or confession and
avoidance, and does not a d m i t of affirmative relief to t h e
d e f e n d a n t (Lovett vs. Lovett, 93 Fla. 611, 112 So. 768;
Secor vs. Silver, 165 Iowa 673, 146 N.W. 845).
4. Where t h e case is submitted on the pleadings, the
failure of the p a r t y to make a reply does not mean t h a t
he is deemed to have controverted t h e issues raised in
the answer, as this is an exception to the rule (Falcasantos
149
vs. How Suy Ching, 91 Phil. 456).

5. A p a r t y cannot, in his reply, a m e n d his cause of
action (Calvo vs. Roldan, 76 Phil. 445) nor i n t r o d u c e
t h e r e i n new or a d d i t i o n a l c a u s e s of action (Anaya vs.
Palaroan, L-27930, Nov. 26, 1970).
S e c . 11. Third, (fourth, etc.) - p a r t y complaint. —

A t h i r d ( f o u r t h , etc.) - p a r t y c o m p l a i n t is a c l a i m
t h a t a d e f e n d i n g p a r t y m a y , w i t h l e a v e o f c o u r t , file
a g a i n s t a p e r s o n n o t a p a r t y to t h e a c t i o n , c a l l e d
t h e t h i r d ( f o u r t h , etc.) - p a r t y d e f e n d a n t , for
contribution, indemnity, subrogation or any other
relief, i n r e s p e c t o f h i s o p p o n e n t ' s c l a i m . (12a)
- .. ---- ' •• J.'.y ... wj - -
NOTES
1. A t h i r d - p a r t y complaint is similar to a cross-claim

in t h a t t h e t h i r d - p a r t y plaintiff s e e k s to recover from
a n o t h e r p e r s o n some relief i n r e s p e c t t o t h e opposing
p a r t y ' s claim, b u t it differs therefrom in t h a t in a cross-
claim, t h e t h i r d p a r t y is a l r e a d y impleaded in t h e action
while in a t h i r d - p a r t y complaint, said t h i r d p a r t y is not
y e t i m p l e a d e d . Consequently,- in t h e filing of a t h i r d -
p a r t y complaint, leave of court is r e q u i r e d as thereafter,
if g r a n t e d , s u m m o n s will have to be served on t h e third-
p a r t y defendant.
2. A t h i r d - p a r t y complaint need not arise out of or

be e n t i r e l y d e p e n d e n t on t h e m a i n action as it suffices
t h a t t h e former be only "in respect of t h e claim of t h e
t h i r d - p a r t y p l a i n t i f f s opponent. Consequently, t h e judg-
m e n t on a t h i r d - p a r t y complaint may become final a n d
executory w i t h o u t w a i t i n g for t h e final d e t e r m i n a t i o n of
t h e m a i n case (Pascual vs. Bautista, L 21644, May 29,
1970).
3. A t h i r d - p a r t y complaint is similar to a complaint

in i n t e r v e n t i o n (Rule 19) in t h a t both r e s u l t in b r i n g i n g
150
RULE 6 KINDS OF PLEADINGS S E C . 11
into t h e action a t h i r d person who was not originally a

party; but they differ in t h a t t h e initiative in a t h i r d - p a r t y
complaint is w i t h t h e person already a p a r t y to t h e action,
while in intervention t h e initiative is with a non-party
who s e e k s t o j o i n t h e a c t i o n . T h e d e f e n d a n t i s n o t
compelled to bring t h i r d p a r t i e s into t h e litigation as t h e
rule simply p e r m i t s t h e inclusion of anyone who meets
the s t a n d a r d set forth therein, in order to avoid multiplicity
of s u i t s (see Balbastro, et al. vs. CA, et al., L-33255
Nov. 29, 1972).
4. The t e s t s to d e t e r m i n e w h e t h e r the t h i r d - p a r t y
complaint is in respect of plaintiff s claim a r e :
"a. W h e r e it a r i s e s out of t h e s a m e t r a n s a c t i o n on
which t h e p l a i n t i f f s claim is based; or w h e t h e r t h e third-
party claim, a l t h o u g h arising out of a n o t h e r or different
contract or t r a n s a c t i o n , is connected with the p l a i n t i f f s
claim;
b. W h e t h e r t h e t h i r d - p a r t y defendant would be liable
to the plaintiff or to t h e defendant for all or p a r t of t h e
plaintiff's claim a g a i n s t t h e original defendant, although
the t h i r d - p a r t y defendant's liability arises out of a n o t h e r
transaction; a n d
c. W h e t h e r t h e t h i r d - p a r t y defendant may assert any
defenses which t h e t h i r d - p a r t y plaintiff h a s or may have
to t h e p l a i n t i f f s claim" (see Capayas vs. CFI of Albay,
et al. 77 Phil 181).
C o n s e q u e n t l y , a d e f e n d a n t may file a t h i r d - p a r t y
complaint in t h e s a m e capacity in which he is being sued
in t h e original complaint. A plaintiff may also file a third-
party complaint b u t also in t h e same capacity in which he
is sued u n d e r a counterclaim.
5. Where t h e t r i a l court has jurisdiction over the
main case, it also h a s jurisdiction over t h e t h i r d - p a r t y
complaint regardless of t h e a m o u n t involved as a third-
party complaint is merely auxiliary to and is a continua-
151
tion of t h e main action (Republic vs. Central Surety &

Insurance Co., et al., L-27802, Oct. 26, 1968; Eastern
Assurance & Surety Corp. vs. Cui, et al., G.R. No. 54452,
July 20, 1981). For t h e s a m e r e a s o n , w h a t is d e t e r -
minative of venue a r e t h e operative facts in the main case,
and not those alleged in t h e t h i r d - p a r t y complaint.
6. An order disallowing a t h i r d - p a r t y complaint is

appealable (Dtr&ioo vei Malagat, L-2413, Aug. 10, 1967)
since it would finally dispose of d e f e n d a n t ' s r i g h t to
implead the t h i r d p a r t y .
7. Where a t h i r d - p a r t y defendant appealed to the

t h e n Court of F i r s t Instance but t h e t h i r d - p a r t y plaintiff
(defendant) did not a p p e a l from t h e j u d g m e n t a g a i n s t
him in favor of t h e plaintiff, such j u d g m e n t became exe-
cutory, w i t h o u t prejudice to t h e t h i r d - p a r t y defendant's
appeal being given due course as it p e r t a i n s only to t h e
t h i r d - p a r t y complaint (Firestone Tire & Rubber Co. vs.
Tempongko, L-24399, Mar. 28, 1969) a n d such j u d g m e n t
on t h e t h i r d - p a r t y complaint is s e p a r a t e a n d severable
from t h a t in t h e m a i n case.
8. Where t h e t r i a l court dismissed t h e complaint

a n d t h e d e f e n d a n t s ' t h i r d - p a r t y complaint a n d only t h e
plaintiff appealed, t h e Court of Appeals, in r e v e r s i n g t h e
j u d g m e n t dismissing p l a i n t i f f s complaint, c a n n o t m a k e
a f i n d i n g of l i a b i l i t y on t h e p a r t of t h e t h i r d - p a r t y
defendants since t h e defendants, as t h i r d - p a r t y plaintiffs,
did not a p p e a l from t h e d i s m i s s a l of t h e i r t h i r d - p a r t y
complaint and the third-party defendants were not
p a r t i e s in t h e case on a p p e a l (Go, et al. vs. CA, et al,
L-25393, Oct. 30, 1980).
9. A t h i r d - p a r t y c o m p l a i n t c a n n o t be filed in a
special civil action for declaratory relief as no m a t e r i a l
relief is sought in t h i s action (Comm. of Customs, et al.
vs. Cloribel, et al, L-21036, June 30, 1977).
152
RULE 6 KINDS OF PLEADINGS S E C S . 12, 1 3
S e c . 12. Bringing new parties. — W h e n t h e

presence of parties other than those to the original
a c t i o n i s r e q u i r e d for t h e g r a n t i n g o f c o m p l e t e r e l i e f
in the d e t e r m i n a t i o n of a c o u n t e r c l a i m or cross-
claim, the court shall order them to be brought in
as defendants, if jurisdiction over them can be
o b t a i n e d . (14)
NOTES
1. F o r p u r p o s e s of Sec. 12 of t h i s Rule, t h e court

m a y a u t h o r i z e t h e filing o f t h e p r o p e r t h i r d - p a r t y
complaint to implead t h e o t h e r p a r t i e s not included in
the original complaint (Rubio vs. Mariano, et al., L-30403,
Jan. 31, 1973).
2. E v e n w h e r e t h e i m p l e a d i n g of t h e t h i r d - p a r t y
defendants does not fall squarely within t h e requisites of
Sec. 12, Rule 6 on t h i r d - p a r t y complaints, their inclusion
in t h e action may be p e r m i t t e d where t h e r e is a question
of law or fact common to t h e r i g h t in which they a r e
i n t e r e s t e d a n d a n o t h e r right sought to be enforced in the
action, hence t h e i r inclusion as proper (now, necessary)
p a r t i e s is j u s t i f i e d u n d e r Sec. 6, Rule 3 of t h e Rules
(Balbastro, et al. vs. CA, et al., supra).
S e c . 13. Answer to third (fourth, etc.) - party

complaint. — A t h i r d ( f o u r t h , etc.) - p a r t y d e f e n d a n t
may allege in his answer his defenses, counter-
claims or cross-claims, including such defenses that
t h e t h i r d ( f o u r t h , etc.) - p a r t y p l a i n t i f f m a y h a v e
against the original p l a i n t i f f s claim. In proper
cases, he may also assert a counterclaim against
t h e o r i g i n a l p l a i n t i f f i n r e s p e c t o f t h e latter's c l a i m
a g a i n s t t h e t h i r d - p a r t y plaintiff, (n)
153
RULE 7
PARTS OF A P L E A D I N G
S e c t i o n 1. Caption. — T h e c a p t i o n s e t s f o r t h t h e
name of the court, the title of the action, and the
docket number if assigned.
The title of the action indicates the names of
t h e p a r t i e s . T h e y s h a l l all b e n a m e d i n t h e o r i g i n a l
c o m p l a i n t or petition; but in all s u b s e q u e n t
pleadings, it shall be sufficient if the name of the
first party on each side be stated with an
appropriate indication when there are other
parties.
Their respective participation in the case shall
b e i n d i c a t e d , ( l a , 2a)
NOTES
1. As revised, t h e caption of a p l e a d i n g in civil cases

is no l o n g e r r e q u i r e d to s t a t e t h e d e s i g n a t i o n of t h e
pleading, since t h e designation of t h e p l e a d i n g is prop-
erly contained in t h e body thereof (Sec. 2) p r e c e d i n g t h e
allegations. In criminal cases, it is r e q u i r e d t h a t , when-
ever possible, t h e complaint or information should s t a t e
t h e d e s i g n a t i o n of t h e offense or t h e section or subsection
of t h e s t a t u t e p u n i s h i n g it (see Sec. 8, Rule 110 a n d notes
thereunder).
2. It is not the caption of the pleading but the

allegations t h e r e i n t h a t determine t h e n a t u r e of t h e action,
a n d t h e c o u r t s h a l l g r a n t t h e relief w a r r a n t e d b y t h e
allegations a n d t h e proof even if no such relief is p r a y e d
for (Ras vs. Sua, L-23302, Sept. 25, 1968).
3. The abbreviation "et al." for et alii ("and others")

or et alius ("and another") is often affixed to t h e n a m e of
154
RULE 7 PARTS OF A P L E A D I N G S SEC. 2
the person first mentioned, where there are more than

one party to the action on either side (see In re Mc-Govern's
Estate, 77 Mont. 182, 250 P. 812; Lyman vs. Milton, 44
Cal. 630).
S e c . 2. The body.—The b o d y of t h e p l e a d i n g s e t s
forth i t s d e s i g n a t i o n , t h e a l l e g a t i o n s o f t h e p a r t y ' s
c l a i m s o r d e f e n s e s , t h e r e l i e f p r a y e d for, a n d t h e d a t e
o f t h e p l e a d i n g , (n)
(a) Paragraphs. — T h e a l l e g a t i o n s in t h e b o d y
of a p l e a d i n g shall be divided into paragraphs so
numbered as to be readily identified, each of which
shall c o n t a i n a s t a t e m e n t of a s i n g l e set of
c i r c u m s t a n c e s s o far a s t h a t c a n b e d o n e w i t h
c o n v e n i e n c e . A p a r a g r a p h m a y be r e f e r r e d to by a
n u m b e r i n a l l s u c c e e d i n g p l e a d i n g s . (3a)
(b) Headings. — W h e n t w o or m o r e c a u s e s of
a c t i o n a r e j o i n e d , t h e s t a t e m e n t o f t h e first s h a l l b e
p r e f a c e d b y t h e w o r d s "first c a u s e o f a c t i o n , " o f t h e
s e c o n d b y " s e c o n d c a u s e o f a c t i o n , " a n d s o o n for
the others.
When one or more paragraphs in the answer
are a d d r e s s e d t o o n e o f s e v e r a l c a u s e s o f a c t i o n i n
the complaint, they shall be prefaced by the words
" a n s w e r t o t h e first c a u s e o f a c t i o n " o r " a n s w e r t o
the s e c o n d c a u s e of action" and so on; and w h e n
one or more paragraphs of the answer are addressed
to several causes of action, they shali be prefaced
by w o r d s to t h a t effect. (4)
(c) Relief. — T h e p l e a d i n g s h a l l s p e c i f y t h e r e l i e f
s o u g h t , b u t i t m a y a d d a g e n e r a l p r a y e r for s u c h
further or other relief as may be d e e m e d just or
e q u i t a b l e . (3a, R6).
(d) Date. — E v e r y p l e a d i n g s h a l l be d a t e d , (n)
155
NOTES
1. The p r a y e r in a pleading does not constitute an

e s s e n t i a l p a r t of t h e a l l e g a t i o n s d e t e r m i n a t i v e of t h e
j u r i s d i c t i o n of a c o u r t . T h e q u e s t i o n of j u r i s d i c t i o n
depends largely upon the determination of t h e t r u e n a t u r e
of t h e action filed by a p a r t y which, in t u r n , involves t h e
consideration of t h e u l t i m a t e facts alleged as constitutive
of t h e cause of action t h e r e i n (Bautista vs. Fernandez,
L-24062, April 30, 1971). The p r a y e r for relief, a l t h o u g h
p a r t of t h e complaint, c a n n o t c r e a t e a c a u s e of action;
hence, it c a n n o t be considered as a p a r t of t h e allegations
on t h e n a t u r e of t h e c a u s e of action (Rosales vs. Reyes, 25
Phil. 495; Cabigao vs. Lim, 50 Phil. 844).
2. The s a m e rule obtains in a majority of t h e s t a t e s

in t h e American jurisdiction which hold t h a t t h e p r a y e r
or d e m a n d for relief is not p a r t of t h e s t a t e m e n t of t h e
cause of action (Salmons vs. Sun & Bradstreet, 162 S.W.
2d 245; Central Nebraska Public Power & Irrigation Dist.
vs. Watson, et al., 299 N.W. 609; Durham vs. Rasco, 227
P. 599). The p r a y e r for relief c a n n o t be considered as
a d d i n g to t h e a l l e g a t i o n s of t h e c o m p l a i n t or p e t i t i o n
(Speizman vs. Guill, 25 S.E. 2d 731; Coke, et al. vs. Sharks,
et al., 291 S.W. 862). The p r a y e r does not e n l a r g e t h e
cause of action s t a t e d nor does it change t h e legal effects
of w h a t is alleged (Sandgren vs. West et ux., 115 P. 2d,
724; State vs. Bonham, et al., 193 S.E. 340). A good
p r a y e r does not aid a defective pleading (Somers vs. Bank
of America, et al., 187 P. 2d 433; Villani vs. National City
Bank of New York, 256 N.Y.S., 602).
S e c . 3. Signature and address. — E v e r y p l e a d i n g

must be signed by the party or counsel representing
him, stating in either case his address which should
n o t b e a p o s t office b o x .
156
RULE 7 P A R T S OF A P L E A D I N G SEC. 3
The signature of counsel constitutes a

certificate by him that he has read the pleading, that
to the best of his knowledge, information, and belief
t h e r e i s g o o d g r o u n d t o s u p p o r t it, a n d t h a t i t i s n o t
i n t e r p o s e d for d e l a y .
A n u n s i g n e d p l e a d i n g p r o d u c e s n o l e g a l effect.
H o w e v e r , t h e c o u r t m a y , i n its d i s c r e t i o n , a l l o w s u c h
deficiency to be remedied if it shall appear that the
same w a s d u e t o m e r e i n a d v e r t e n c e a n d not i n t e n d e d
for d e l a y . Counsel w h o deliberately files an
unsigned pleading, or signs a pleading in violation
of this Rule, or alleges scandalous or indecent
matter therein, or fails to promptly report to the
court a c h a n g e of his address, shall be subject to
a p p r o p r i a t e d i s c i p l i n a r y a c t i o n . (5a)
NOTES
1. The S u p r e m e Court has further resolved t h a t , in

addition to t h e r e q u i r e m e n t t h a t counsel should indicate
in all pleadings, motions a n d p a p e r s submitted by him to
judicial or quasi-judicial bodies his c u r r e n t Professional
Tax Receipt (PTR) a n d IBP official receipt or Lifetime
Member N u m b e r (Bar Matter No. 287, Sept. 26, 2000), he
should f u r t h e r indicate his Roll of Attorneys Number.
All p l e a d i n g s , m o t i o n s a n d p a p e r s filed in court,
w h e t h e r personally or by mail, which do not bear counsel's
Roll of A t t o r n e y s N u m b e r may not be acted upon by the
court, without prejudice to w h a t e v e r disciplinary action
the court may t a k e a g a i n s t t h e erring counsel who shall
likewise be required to comply with the requirement within
5 d a y s from notice. F a i l u r e to comply with such
r e q u i r e m e n t shall be a ground for further disciplinary
sanction and for contempt of court (Bar Matter No. 1132,
April 1, 2003).
2. It will be noted t h a t this amended section further
specifically r e q u i r e s , u n d e r p a i n o f a d m i n i s t r a t i v e
157
d i s c i p l i n a r y a c t i o n o r e v e n a c i t a t i o n for i n d i r e c t
c o n t e m p t , t h a t counsel should p r o m p t l y r e p o r t t o t h e
court w h e r e he is a p p e a r i n g in a case any change of his
a d d r e s s . It is e l e m e n t a r y t h a t the r e q u i r e m e n t to make
of record in the court his a d d r e s s or any change thereof is
to e n s u r e his prompt receipt of judicial orders or processes;
yet, a n u m b e r of lawyers fail to report such changes in
both the trial and appellate courts resulting in unnecessary
delay in judicial a d m i n i s t r a t i o n . This situation is further
a g g r a v a t e d w h e r e even t h e a d d r e s s of t h e p a r t y is not
stated in the pleadings or it is merely averred t h a t
processes to said p a r t y may be served on his counsel.
3. No s u b s t i t u t i o n of a t t o r n e y s will be a l l o w e d
unless (a) t h e r e is a w r i t t e n r e q u e s t for such s u b s t i t u t i o n ,
(b) filed w i t h t h e w r i t t e n c o n s e n t o f t h e c l i e n t , a n d
(c) with the written consent of the attorney to be substituted,
or with proof of service of notice of said motion to t h e
a t t o r n e y to be s u b s t i t u t e d . U n l e s s t h e s e a r e complied
with, no s u b s t i t u t i o n will be p e r m i t t e d a n d t h e a t t o r n e y
who last a p p e a r e d in t h e case before such application will
be responsible for t h e conduct of t h e case (Bacarro vs. CA,
et al, L-28203, Jan. 22, 1971, citing U.S. vs. Borromeo,
20 Phil. 189; see Magpayo, et al. vs. CA, et al, L-35966,
Nov. 19, 1974; Sumadchat vs. CA, et al, G.R. No. 52197,
Jan. 30, 1982; Aban vs. Enage, L-30666, Feb. 26, 1983;
Yu, et al. vs. CA, et al, G.R. No. 56766, Feb. 28, 1985).
S e c . 4. Verification. — E x c e p t w h e n o t h e r w i s e
specifically provided by law or rule, pleadings need
not be under oath, verified or accompanied by
affidavit.
A p l e a d i n g is verified by an affidavit that the
affiant has read the pleading and that the
allegations therein are true and correct of his
personal knowledge or based on authentic records.
158
A p l e a d i n g required to be verified w h i c h
contains a verification based on "information and
belief," or u p o n " k n o w l e d g e , i n f o r m a t i o n a n d belief,"
or Jacks a proper verification, shall be t r e a t e d as
an unsigned-pleading. ( 4 a ) (As amended in A.M.
No. 00-2-10SC, effective May 1, 2000)
NOTES
1. The second p a r a g r a p h of this section h a s been

further a m e n d e d so t h a t the pleader's affirmation of the
t r u t h a n d correctness of t h e allegations in his pleading
shall be based not only on his "knowledge and b e l i e f but
specifically on h i s " p e r s o n a l k n o w l e d g e or b a s e d on
a u t h e n t i c records." In t h e 1964 Rules of Court, Sec. 6 of
Rule 7 required personal knowledge of t h e facts averred,
w h i c h w a s c o n s i d e r e d too s t r i c t since a p e r s o n c a n
reasonably affirm a fact based on his belief in its t r u t h
when t h e r e is or h a s been no other fact or reason contrary
thereto.
However, t h a t liberalized version is better regulated
by the p r e s e n t a m e n d e d provisions t h a t facts should be
attested to on t h e basis of one's personal knowledge or,
especially with regard to old or vintage facts or events,
by the recitals thereof in a u t h e n t i c records. Verification
is intended to forestall allegations which are perjured or
h e a r s a y , a n d t h i s p u r p o s e is reasonably s u b s e r v e d by
the r e q u i r e m e n t for a u t h e n t i c documents such as official
records which a r e exceptions to t h e h e a r s a y evidence
rule. For t h e same reason, a verification cannot be made
on facts obtained or arising in whole or in p a r t from mere
information and belief.
2. Verification may be made by the p a r t y , his
r e p r e s e n t a t i v e , l a w y e r o r any p e r s o n who p e r s o n a l l y
knows the t r u t h of the facts alleged in the pleading. Where
the verification is made by the attorney who also signed
159
the pleadings, the courts a r e inclined to be liberal and

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

so r e q u i r e d by t h e R u l e s a n d j u r i s p r u d e n c e , as in t h e
following i n s t a n c e s :
a. Petition for relief from j u d g m e n t or o r d e r (Sec. 3,
Rule 38);
b. Petition for review from t h e Regional Trial Courts
to t h e Court of Appeals (Sec. 1, Rule 42);
c. Petition for review from t h e quasi-judicial agencies
to t h e C o u r t of Appeals (Sec. 5, Rule 43);
d . A p p e a l b y c e r t i o r a r i from t h e C o u r t o f T a x
A p p e a l s to t h e S u p r e m e C o u r t (Sec. 12, R.A. 9 2 8 2 ,
a m e n d i n g Sec. 19, R.A. 1125);
e. Appeal by c e r t i o r a r i from t h e Court of Appeals to
t h e S u p r e m e Court (Sec. 1, Rule 45);
f. P e t i t i o n for a n n u l m e n t of j u d g m e n t s or final
o r d e r s a n d resolutions (Sec. 1, Rule 47);
g. Complaint for injunction (Sec. 4, Rule 58);
h. Application for a p p o i n t m e n t of receiver (Sec. 1,
Rule 59);
160
i. A p p l i c a t i o n for s u p p o r t pendente lite (Sec. 1,

Rule 69);
j. P e t i t i o n for c e r t i o r a r i a g a i n s t t h e j u d g m e n t s ,
final o r d e r s or resolutions of constitutional commissions
(Sec. 2, Rule 64);
k. Petition for certiorari (Sec. 1, Rule 65);
1. P e t i t i o n for prohibition (Sec. 2, Rule 65);
m. Petition for m a n d a m u s (Sec. 3, Rule 65);
n. Petition for quo w a r r a n t o (Sec. 1, Rule 66);
o. Complaint for expropriation (Sec. 1, Rule 67);
p. Complaint for forcible e n t r y or unlawful d e t a i n e r
(Sec. 4, Rule 70);
q. Petition for indirect contempt (Sec. 4, Rule 71);
r. P e t i t i o n for a p p o i n t m e n t of a general g u a r d i a n
(Sec. 2, Rule 93);
s. Petition for leave to sell or e n c u m b e r property of
the w a r d by a g u a r d i a n (Sec. 1, Rule 95);
t. P e t i t i o n for t h e d e c l a r a t i o n of competency of a
ward (Sec. 1, Rule 97);
u. Petition for habeas corpus (Sec. 3, Rule 102);
v. Petition for change of n a m e (Sec. 2, Rule 103);
w. P e t i t i o n for v o l u n t a r y judicial dissolution of a
corporation (Sec. 1, Rule 104); and
x. Petition for cancellation or correction of e n t r i e s
in the civil registry (Sec. 1, Rule 108).
4. While not required to be verified in the m a n n e r
and form prescribed by Sec. 4 of this Rule, the following
must be under oath:
a. Denial of t h e genuineness and due execution of
an actionable document (Sec. 8, Rule 8);
b. Denial of allegations of usury (Sec. 11, Rule 8);
161
RULE 7 REMEDIAL LAW COMPENDIUM SEC. 4
c. Motion to s e t aside a default o r d e r (Sec. 3[bJ,

Rule 9).
d. Answer to w r i t t e n interrogatories (Sec. 2, Rule 25);
and
e. Answer to r e q u e s t for admission (Sec. 2, Rule 26).
5. Supporting affidavits or affidavits of merits are
required in t h e following:
a . M o t i o n t o p o s t p o n e for a b s e n c e o f e v i d e n c e
(Sec. 3, Rule 30);
b. Motion to postpone for illness of a p a r t y or counsel
(Sec. 4, Rule 30);
c . M o t i o n for s u m m a r y j u d g m e n t o r o p p o s i t i o n
t h e r e t o (Secs. 1, 2, 3 a n d 5, Rule 35);
d. M o t i o n for n e w t r i a l on t h e g r o u n d of f r a u d ,
accident, m i s t a k e or excusable negligence or opposition
t h e r e t o (Sec. 2, Rule 37);
e. Petition for relief from j u d g m e n t or o r d e r (Sec. 3,
Rule 38);
f. T h i r d - p a r t y claim (See. 16, Rule 39);
g. P r o o f r e q u i r e d of a r e d e m p t i o n e r (Sec. 30,
Rule 39);
h. M o t i o n for p r e l i m i n a r y a t t a c h m e n t (Sec. 3,
Rule 57);
i. Motion for dissolution of p r e l i m i n a r y injunction
(Sec. 6, Rule 58);
j. Application for a w r i t of replevin (Sec. 2, Rule 60);
k. Claim a g a i n s t t h e e s t a t e of a d e c e d e n t (Sec. 9,
Rule 86); a n d
1. Motion for new t r i a l on t h e ground of newly-
discovered evidence in criminal cases (Sec. 4, Rule 121).
6. E v e n w h e r e verification is r e q u i r e d by t h e Rules,
t h e court m a y give due course to t h e p l e a d i n g even if
162
such verification is lacking or is insufficient or defective

if the circumstances warrant the relaxation or dispensing
of the rule in the interest of justice (Oshita vs. Republic,
L-21180, Mar. 31, 1967; cf. Quimpo vs. Dela Victoria,
L 31822, July 31, 1972; Valino vs. Munoz, et al., L-26151,
Oct. 22, 1970; Villasanta, et al. vs. Bautista, et al.,
L-30874, Nov. 26, 1970). Verification of a pleading is a
formal, not a jurisdictional, requisite (Buenaventura vs.
Uy, et al., L-28156, Mar. 31, 1987). It is simply intended
to secure an assurance that the allegations are true and
correct and that the pleading is filed in good faith (Bank
of the Phil. Islands vs. CA, et al., G.R. No. 146923,
April 30, 2003). Hence, in the interest of substantial
justice, the Court may simply order the correction of the
unverified pleading or act on it and waive strict compliance
with the rules (Vda. de Gabriel vs. CA, et al., G.R. No.
103883, Nov. 14, 1996; Panaguiton, Jr. vs. Dept. of
Justice, et al., G.R. No. 167571, Nov. 25, 2008).
7. Pleadings filed in the inferior courts in cases

covered by the Rule on Summary Procedure are all re-
quired to be verified (Sec. 2[BJ on Civil Cases).
S e c . 6. Certification against forum shopping. — T h e

plaintiff or principal party shall certify under oath
in the complaint or other initiatory pleading
a s s e r t i n g a c l a i m for relief, or in a s w o r n
certification annexed thereto and simultaneously
f i l e d t h e r e w i t h : (a) t h a t h e h a s n o t t h e r e t o f o r e
c o m m e n c e d a n y a c t i o n o r filed a n y c l a i m i n v o l v i n g
the same issues in any court, tribunal or quasi-
judicial agency and, to the best of his knowledge,
no such other action or claim is pending therein;
(b) if t h e r e is s u c h o t h e r p e n d i n g a c t i o n or c l a i m , a
c o m p l e t e s t a t e m e n t o f t h e p r e s e n t s t a t u s thereof;
a n d (c) i f h e s h o u l d t h e r e a f t e r l e a r n t h a t t h e s a m e
or similar action or claim has been filed or is
p e n d i n g , h e s h a l l r e p o r t t h a t fact w i t h i n five (5) d a y s
163
therefrom to the court wherein his aforesaid

c o m p l a i n t o r i n i t i a t o r y p l e a d i n g h a s b e e n filed.
Failure to comply with the foregoing require-
ments shall not be curable by mere amendment of
the complaint or other initiatory pleading but shall
b e c a u s e for t h e d i s m i s s a l o f t h e c a s e w i t h o u t
prejudice, unless otherwise provided, upon motion
and after hearing. The s u b m i s s i o n of a false
certification or non-compliance with any of the
undertakings therein shall constitute indirect
contempt of court, without prejudice to the
corresponding administrative and criminal actions.
If the acts of the party or his counsel clearly
constitute willful and deliberate forum shopping,
t h e s a m e s h a l l b e g r o u n d for s u m m a r y d i s m i s s a l w i t h
prejudice and shall constitute direct contempt, as
w e l l a s a c a u s e for a d m i n i s t r a t i v e s a n c t i o n s , (n)
NOTES
1. The S u p r e m e Court h a s explained t h a t t h e r e is

forum shopping when, as a r e s u l t of an a d v e r s e decision
in one forum, or in anticipation thereof, a p a r t y s e e k s a
favorable opinion in a n o t h e r forum t h r o u g h m e a n s o t h e r
t h a n a p p e a l or c e r t i o r a r i by r a i s i n g identical c a u s e s of
action, s u b j e c t - m a t t e r a n d issues. ' T o r u m shopping exists
w h e n two or more actions involve t h e s a m e t r a n s a c t i o n s ,
e s s e n t i a l facts a n d c i r c u m s t a n c e s , a n d r a i s e i d e n t i c a l
c a u s e s o f action, s u b j e c t - m a t t e r a n d i s s u e s . A n o t h e r
i n d i c a t i o n is w h e n t h e e l e m e n t s of litis pendentia a r e
p r e s e n t o r w h e r e a f i n a l j u d g m e n t i n o n e c a s e will
a m o u n t to res judicata in t h e o t h e r case. T h e t e s t is
w h e t h e r in t h e two or more p e n d i n g cases t h e r e is identity
of p a r t i e s , r i g h t s or c a u s e s of action a n d reliefs s o u g h t
(Ligon vs. CA, et al, G.R. No. 127683, Aug. 7, 1998; cf.
Melo, et al. vs. CA, et al, G.R. No. 123686, Nov. 16, 1999).
164
Forum shopping is condemned because it duly

b u r d e n s courts w i t h heavy caseloads, unduly taxes t h e
m a n p o w e r a n d financial resources of t h e judiciary, and
trifles with and mocks judicial processes. The primary evil
sought to be prescribed by t h e prohibition against forum
shopping, however, is the possibility of conflicting decisions
being r e n d e r e d by t h e different c o u r t s upon t h e s a m e
issues (Guy vs. CA, et al., G.R. No. 165849, Dec. 10, 2007,
and companion cases).
2. This section, w i t h modifications, is t a k e n from

Administrative Circular No. 04-94 issued by the S u p r e m e
C o u r t on F e b r u a r y 8, 1994 for t h e p u r p o s e e x p l a i n e d
therein:
"Revised Circular No. 28-91, dated F e b r u a r y 8,
1994 applies to a n d governs t h e filing of petitions in
t h e S u p r e m e Court and t h e Court of Appeals and is
intended to p r e v e n t t h e multiple filing of petitions or
complaints involving the same issues in other
t r i b u n a l s or agencies as a form of forum shopping.
"Complementary t h e r e t o and for t h e same pur-
pose, t h e following r e q u i r e m e n t s , in addition to those
in p e r t i n e n t provisions of t h e Rules of C o u r t a n d
existing circulars, shall be strictly complied with in
t h e filing of c o m p l a i n t s , p e t i t i o n s , applications or
o t h e r initiatory pleadings in all courts and agencies
other t h a n the Supreme Court and the Court of
Appeals and shall be subject to the sanctions provided
hereunder."
The provisions of Revised Circular No. 28-91 have
been adopted and incorporated in Rules 42, 43, 45, 46,
47, 64 and 65.
3. The S u p r e m e Court has advanced the rule t h a t
compulsory c o u n t e r c l a i m s a r e not c o n t e m p l a t e d in its
Administrative Circular No. 04-94 which refers to initiatory
and similar pleadings. A compulsory counterclaim set up
16B
in t h e a n s w e r s should not be considered as an initiatory

or s i m i l a r p l e a d i n g since t h e d e f e n d a n t h a s to raise a
compulsory counterclaim where proper, otherwise he
waives t h e s a m e . The rationale is t h a t t h e compulsory
counterclaim is only a reaction or response, m a n d a t o r y
u n d e r p a i n of waiver, to an initiatory pleading which is
the complaint (Cruz-Agana vs. Santiago-Logman, etc., et
al., G.R. No. 139018, April 11, 2005). There are American
doctrines, however, holding t h a t any counterclaim is in the
n a t u r e of a counter-complaint or cross-petition; hence, under
t h a t theory it is actually initiatory of a claim for relief discrete
from the adverse party's claim.
4 . Aside from some a m e n d m e n t s t o t h e o r i g i n a l

sanctions imposed in A d m i n i s t r a t i v e Circular No. 04-94,
this section r e i t e r a t e s as a r e g u l a r r e q u i r e m e n t u n d e r t h e
Rules t h a t t h e certification a g a i n s t forum shopping may
be incorporated in t h e complaint or contained in a sworn
certification a n n e x e d t h e r e t o a n d s i m u l t a n e o u s l y filed
t h e r e w i t h . T h i s e n u n c i a t e s t h e policy of t h e S u p r e m e
C o u r t e x p r e s s e d a s e a r l y a s C i r c u l a r N o . 1-88 t h a t
s u b s e q u e n t c o m p l i a n c e w i t h t h e r e q u i r e m e n t s for t h e
filing of p e t i t i o n s or motions is not a ground for reconsi-
d e r a t i o n of t h e d i s m i s s a l of said p l e a d i n g s , except for
compelling r e a s o n s . In light hereof, t h e view t h a t belated
filing of t h e certification m a y be d e e m e d a s u b s t a n t i a l
compliance should no longer be s u s t a i n e d .
With respect to the contents of the certification
which t h e p l e a d e r may p r e p a r e , t h e rule of s u b s t a n t i a l
compliance m a y be availed of. While t h i s section r e q u i r e s
t h a t it be strictly complied with, it merely u n d e r s c o r e s
its m a n d a t o r y n a t u r e in t h a t it cannot be altogether
dispensed with or its r e q u i r e m e n t s completely disregarded
b u t it does not t h e r e b y p r e v e n t s u b s t a n t i a l compliance on
this aspect of its provisions u n d e r justifiable circumstances
(see Gabionza vs. CA, et al., G.R. No. 112547, July 18,
1994). This certification on non-forum s h o p p i n g
was designed to promote and facilitate the orderly
166
a d m i n i s t r a t i o n of justice and, therefore, should not be

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

S u p r e m e C o u r t , in t h e c a s e of Fil-Estate Golf and
Development, Inc. vs. CA, et al. (G.R. No. 1 2 0 9 5 8 ,
Dec. 16, 1996), ruled as follows:
167
"As clearly demonstrated above, the willful a t t e m p t

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

s t r e n g t h e n e d by the issuance of S u p r e m e Court
C i r c u l a r No. 04-94. Said c i r c u l a r formally e s t a -
blished t h e rule t h a t t h e deliberate filing of multiple
c o m p l a i n t s t o o b t a i n favorable a c t i o n c o n s t i t u t e s
forum-shopping and shall be a ground for s u m m a r y
dismissal thereof."
6. As earlier stated, with respect to t h e c o n t e n t s of

t h e c e r t i f i c a t i o n of n o n - f o r u m s h o p p i n g , t h e r u l e of
s u b s t a n t i a l compliance may be invoked u n d e r justifiable
circumstances. However, it is mandatory that the
certification be executed by the petitioner himself, and
not by counsel. Obviously, it is the petitioner, and not
t h e counsel r e t a i n e d for a p a r t i c u l a r case, who is in the
best position to personally know w h e t h e r he or it had
actually filed or caused the filing of a n o t h e r or previous
petition involving the same case or s u b s t a n t i a l l y the s a m e
i s s u e s . H e n c e , a certification e x e c u t e d by c o u n s e l is
defective and c o n s t i t u t e s a valid cause for dismissal of
the petition (Far Eastern Shipping Co. us. CA, et a I., G.R.
No. 130068, and Manila Pilots Association vs. Phil. Ports
Authority, et al., G.R. No. 130150, j o i n t l y decided on
Oct. 1, 1998; cf. Commissioner of Internal Revenue vs.
S.C. Johnson & Son, Inc., et al., G.R. No. 127105,
June 25, 1999; Mendigorin us. Cabantog, etc., G.R.
No. 136449, Aug. 22, 2002).
168
RULE 7 PARTS OF A PLEADING SEC. 5
7. On t h e foregoing premises, where t h e r e are

several p e t i t i o n e r s , it is not sufficient t h a t only one of
t h e m executes t h e certification, a b s e n t a showing t h a t
he was so a u t h o r i z e d by t h e others. T h a t certification
requires p e r s o n a l knowledge and it cannot be presumed
t h a t t h e signatory knew t h a t his co-petitioners had the
same or similar actions filed or pending (Loquias, et al.
vs. Office of the Ombudsman, et al., G.R. No. 139396,
Aug. 15, 2000). Where, however, the co-petitioners are
h u s b a n d a n d wife w i t h j o i n t i n t e r e s t i n t h e s u b j e c t
m a t t e r of t h e case which is their conjugal property, the
h u s b a n d alone as a d m i n i s t r a t o r of said p r o p e r t y can
execute t h e certification (Docena, et al. vs. Lapesura, etc.,
et al., G.R. No. NO 153, Mar. 28, 2001). Also, where all
the p e t i t i o n e r s , b e i n g r e l a t i v e s a n d co-owners of t h e
properties in d i s p u t e , s h a r e a common i n t e r e s t t h e r e i n
and a common defense in the action, one of them alone can
execute t h e certificate of non-forum shopping (Cavile,
et al. vs. Cavile, et al., G.R. No. 148635, April 1, 2003).
8. This r e q u i r e m e n t is intended to apply to both

n a t u r a l and juridical persons. Where the petitioner is a
c o r p o r a t i o n , t h e certification a g a i n s t forum s h o p p i n g
s h o u l d be s i g n e d by i t s d u l y a u t h o r i z e d d i r e c t o r or
r e p r e s e n t a t i v e . The s a m e is t r u e with respect to any
juridical entity since it has of necessity the proper
officer to r e p r e s e n t it in its other t r a n s a c t i o n s (Digital
Microwave Corp. vs. CA, et al, G.R. No. 128550, Mar. 16,
2000). In National Steel Corp. vs. CA, et al. (G.R.
No. 1 3 4 4 6 8 , A u g . 29, 2002), t h e r u l e w a s l i b e r a l l y
applied pro hoc vice "in view of the peculiar circumstances
of the case and in the interest of s u b s t a n t i a l justice."
However, in BA Savings Bank vs. Sia, et al. (G.R.
No. 1 3 1 2 1 4 , J u l y 2 7 , 2 0 0 0 ) , i t w a s h e l d t h a t t h e
certification of non-forum shopping may be signed, for and
on behalf of a corporation, by a specifically authorized
lawyer who has personal knowledge of the facts required
to be disclosed in such document. This does not mean,
169
though, t h a t any lawyer representing the corporation may

routinely sign t h a t certification. T h a t lawyer m u s t be
specifically auOwrized in order to validly sign t h e s a m e .
F u r t h e r , while said counsel may be t h e counsel of record;
t h e r e m u s t be a resolution of the board of directors t h a t
specifically a u t h o r i z e s him to file the action and execute
the certification (BPI Leasing Corp. vs. CA, et al., G.R.
No. 127624, Nov. 18, 2003).
9. If a case is dismissed without prejudice because

of the filing by t h e plaintiff of a notice or dismissal before
the service of t h e a n s w e r or responsive pleading p u r s u a n t
to Sec. 1, Rule 17, the s u b s e q u e n t refiling of the case by
the same p a r t y will not require a certification of non-forum
shopping s e t t i n g forth such a n t e c e d e n t facts.
As already stated, forum shopping is resorted to by a
p a r t y with a case in one forum in order to possibly secure
a favorable j u d g m e n t in a n o t h e r forum, o t h e r t h a n by
a p p e a l or c e r t i o r a r i , or t h e i n s t i t u t i o n of two or more
actions or proceedings on the same cause, on the
s u p p o s i t i o n t h a t one or t h e o t h e r c o u r t would m a k e a
favorable d i s p o s i t i o n . Since a p a r t y r e s o r t s to forum
shopping to improve his chances of obtaining a favorable
decision, t h a t prohibition could not apply to a s i t u a t i o n
c o n t e m p l a t e d in Sec. 1, Rule 17. T h e r e is no a d v e r s e
decision a g a i n s t the plaintiff and t h e order of dismissal
merely confirms t h e dismissal of t h e complaint w i t h o u t
prejudice. The a p p r e h e n s i o n t h a t t h e case was dismissed
in o r d e r to be t r a n s f e r r e d to t h e sala of a n o t h e r j u d g e
supposedly more s y m p a t h e t i c to t h e plaintiff is baseless
and speculative (Roxas vs. CA, et al., G.R. No. 139337,
Aug. 15, 2001).
10. This section provides for t h e m a t t e r s t h a t should

be contained in t h e certification a g a i n s t forum shopping
in the complaint or initiatory p l e a d i n g s filed i n t h e
R e g i o n a l T r i a l C o u r t . Sec. 3, Rule 46 p r e s c r i b e s t h e
170
r e q u i r e m e n t s for a certification a g a i n s t forum shopping
in petitions filed in the Court of Appeals, which have also
been adopted for petitions filed in the S u p r e m e Court,
p u r s u a n t to Sec. 2, Rule 56.
1 1 . As a goneral^cule-, t h e violation of t h e rule-on

f o r u m s h o p i » H i g o h o u l a ~ b e - r a i s e d a t -the ear*liest
opportunity^ e u e h - « s * R - a - m o t i o n to dismiss or a similar
pleading. It should be noted t h a t Sec. 1, Rule 9 provides
t h a t defenses and objections not pleaded in a motion to
dismiss or in an a n s w e r are deemed waived. Also, Sec. 8,
Rule 15 s t a t e s t h a t , subject to t h e provisions of said
Sec. 1, Rule 9, a motion a t t a c k i n g a p l e a d i n g , o r d e r ,
j u d g m e n t or proceeding shall include all objections t h e n
available, and all objections not so included are deemed
waived.
T h u s , -belatedly raising- an-objection d u e to forum
shopping at the-appellate stage will not cause t h e dismissal
of t h e appeal, except w h e r e t h e court h a s no jurisdiction
over t h e s u b j e c t m a t t e r , or w h e r e litis pendentia, res
judicata or b a r by s t a t u t e of limitations are present (Young
vs. Seng, etc., G.R. No. 143464, Mar. 5, 2003).
12. The doctrine of forum non conveniens literally

means "the forum is inconvenient," and emerged in private
i n t e r n a t i o n a l law to d e t e r the practice of global forum
shopping, t h a t is, to p r e v e n t nonresident litigants from
choosing the forum or place to bring their suit for malicious
reasons, to secure procedural a d v a n t a g e s , or to select a
more friendly venue. The court, may, however, refuse
impositions on its jurisdiction where it is not the most
convenient forum and the p a r t i e s are not precluded from
seeking remedies elsewhere.
W h e t h e r a suit should be e n t e r t a i n e d or dismissed
under this doctrine depends largely on the facts of the
particular case and is addressed to the sound discretion of
the t r i a l c o u r t . T h e S u p r e m e C o u r t h a s held t h a t a
171
Philippine court may assume jurisdiction over a conflict

of laws case, if it chooses to do so, provided t h a t it is one to
which the p a r t i e s may conveniently resort, t h a t it is in a
position to make an intelligent decision on the law and
the facts, and t h a t it has or is likely to have t h e power to
enforce its decision. However, while it h a s t h e discretion
to a b s t a i n from a s s u m i n g jurisdiction u n d e r t h e doctrine,
it should do so only after vital facts a r e established to
d e t e r m i n e w h e t h e r special c i r c u m s t a n c e s r e q u i r e t h e
court's desistance.
Since this doctrine requires such a factual determi-
nation, it is more properly considered a m a t t e r of defense.
It should not be used as a ground for a motion to dismiss,
and, in fact, Rule 16 does not include said doctrine as a
g r o u n d . In any e v e n t , s u c h a claim of global forum
s h o p p i n g s h o u l d r e q u i r e t h a t a l l e l e m e n t s o f litis
pendentia a r e p r e s e n t and a final j u d g m e n t in one case
will a m o u n t to res judicata in the other (Bank of America
NT & SA, et. al. vs. CA, et al., G.R. No. 120435,
Mar. 31, 2003). Apropos t h e r e t o , this equitable doctrine
p r e s u p p o s e s at least two forums in which t h e d e f e n d a n t is
a m e n a b l e to p r o c e s s a n d f u r n i s h e s c r i t e r i a for choice
b e t w e e n s u c h f o r u m s (Wilson vs. Seas Shipping Co.,
D.C.Pa., 78 F. Supp. 464).
172
RULE 8
M A N N E R OF MAKING A L L E G A T I O N S
IN PLEADINGS
S e c t i o n 1. In general. — E v e r y p l e a d i n g s h a l l
c o n t a i n in a m e t h o d i c a l a n d l o g i c a l form, a p l a i n ,
concise and direot-etetetnent of the ultimate facts
o n w h i c h t h e p a r t y p l e a d i n g r e l i e s for h i s c l a i m o r
defense, as the case may be, omitting t h e statement
o f m e r e e v i d e n t i a r y f a c t s . (1)
hi a d e f e n s e r e l i e d on is based on law, the
pertinent provisions thereof and their applicability
t o h i m s h a l l be< c l e a r l y a n d c o n c i s e l y s t a t e d , (n)
NOTES
1. As a l r e a d y s t a t e d , a n n e x e s to..pleadings, -are
considered p a r t of t h e pleadings, but t h e said pleadings
must contain-a summary statement of the matters
contained in t h e annex and c a n n o t j u s t refer to the same
(Rubios, et al. vs. Reolo, 96 Phil. 984fUnrep.J; La Mallorca
vs. CA, et al, 100 Phil. 1048; see Sec. 7 of this Rule).
2. "Ultimate facte" are the i m p o r t a n t and substan-
tial facts which e i t h e r directly form t h e b a s i s of t h e
plaintiff's p r i m a r y right and duty or directly make up
the wrongful acts or omissions of the defendant (Alsua
us. Johnson, 21 Phil. 308). A fact is essential if it cannot
be s t r i c k e n out w i t h o u t leaving t h e s t a t e m e n t of t h e
cause of action or defense insufficient (Toribio, et al. vs.
Bid in, etc., et al, G.R. No. 57821, Jan. 17, 1985). Hence,
conclusions, i n f e r e n c e s , p r e s u m p t i o n s , and d e t a i l s of
probative m a t t e r s should not be alleged.
•. <t\-
3. "Evidentiary facts" are those which are necessary
to prove the ultimate fact or which furnish evidence of
the existence of some other facts. They are not proper as
173
allegations in the pleadings as they may only r e s u l t in

confusing t h e s t a t e m e n t of t h e c a u s e of action or t h e
d e f e n s e . T h e y a r e not n e c e s s a r y t h e r e f o r , a n d t h e i r
exposition is actually p r e m a t u r e as such facts m u s t be
found and d r a w n from testimonial and other evidence.
4. The second p a r a g r a p h is a new provision and is
in line w i t h t h e r u l e t h a t a p a r t y m u s t s e t o u t w i t h
clarity right in his pleading the m a t t e r s upon which he
i n t e n d s to rely for his defense. It has been a m a t t e r of
j u d i c i a l e x p e r i e n c e t h a t often a defense is p o s t u l a t e d
supposedly upon certain provisions of law and, with such
bare allegation, t h e pleader leaves it to t h e court a n d the
opposing p a r t y to divine for t h e m s e l v e s how said legal
provisions or principles could possibly apply or r e l a t e to
the n a t u r e of the defense invoked, a s t r a t e g y made more
irksome and undesirable where several defenses and legal
p r o v i s i o n s a r e i n v o k e d . T h e r a t i o n a l e for t h i s new
r e q u i r e m e n t w h e r e t h e defense is based on legal g r o u n d s
is t h e s a m e as t h e r e q u i r e m e n t for s t a t i n g t h e u l t i m a t e
facts w h e r e t h e defense is based on factual g r o u n d s .
S e c . 2. Alternative causes of action or defenses. —

A p a r t y m a y set forth t w o or m o r e s t a t e m e n t s of a
claim or defense alternatively or hypothetically,
either in one cause of action or defense or in
separate causes of action or defenses. When two
or more statements are made in the alternative and
one of t h e m if made i n d e p e n d e n t l y would be
sufficient, t h e p l e a d i n g is not m a d e insufficient by
the insufficiency of one or m o r e of the alternative
s t a t e m e n t s . (2)
S e c . 3. Conditions precedent. — In a n y p l e a d i n g
a general a v e r m e n t of the p e r f o r m a n c e or occur-
r e n c e of all c o n d i t i o n s p r e c e d e n t shall be sufficient.
(3)
174
RULE 8 MANNER OF MAKING ALLEGATIONS SECS 4 5
IN PLEADINGS
S e c . 4. Capacity. — F a c t s s h o w i n g t h e c a p a c i t y
of a p a r t y to s u e or be s u e d or t h e a u t h o r i t y of a
party to s u e or be s u e d in a r e p r e s e n t a t i v e c a p a c i t y
or the legal existence of an organized association
of p e r s o n s t h a t is m a d e a party, m u s t be a v e r r e d .
A party d e s i r i n g to raise an issue as to the legal
existence of any party or the capacity of any party
to s u e or be s u e d in a r e p r e s e n t a t i v e c a p a c i t y , s h a l l
do so by specific denial, which shall include such
s u p p o r t i n g p a r t i c u l a r s a s are p e c u l i a r l y w i t h i n t h e
p l e a d e r ' s k n o w l e d g e . (4)
NOTE
1. Where the plaintiffs are foreign corporations,

the specific circumstance t h a t they are duly licensed to do
business in the Philippines, or t h a t the transaction sued
upon is singular and isolated, is an essential p a r t of the
e l e m e n t of t h e plaintiff's capacity to sue and m u s t be
affirmatively pleaded as required by Sec. 4 of this Rule
(Atlantic Mutual Insurance Co. us. Cebu Stevedoring
Co., Inc., L-18961, Aug. 31, 1966).
S e c . 5. Fraud, mistake, condition of the mind. — In

all a v e r m e n t s of fraud-or m i s t a k e , the c i r c u m s t a n c e s
c o n s t i t u t i n g fraud or m i s t a k e nauet be staged w i t h
particularity. Malice, intent, knowledge or other
c o n d i t i o n of t h e m i n d of a p e r s o n m a y be a v e r r e d
g e n e r a l l y . (5a)
NOTE
1. F a c t s c o n s t i t u t i n g condition of t h e mind a r e
permitted to be averred generally as it would be difficult
to do so with particularity. However, fraud and mistake
are required to be averred with particularity in order to
enable the opposing party to controvert the p a r t i c u l a r
facta allegedly constituting the same. This requirement
175
RULE 8 REMEDIAL LAW COMPENDIUM SECS. 6. 7-8
a s s u m e s s i g n i f i c a n c e i n m o t i o n s for n e w t r i a l o r
p e t i t i o n s for relief from j u d g m e n t or o r d e r b a s e d on
fraud or mistake.
S e c . 6. Judgment. — In p l e a d i n g a j u d g m e n t or
decision of a d o m e s t i c or foreign court, judicial or
q u a s i - j u d i c i a l t r i b u n a l , or of a b o a r d or officer, it is
sufficient to aver the j u d g m e n t or decision w i t h o u t
setting forth m a t t e r showing jurisdiction to r e n d e r
it. (6)
NOTE
1. This provision is a necessary consequence of the

disputable p r e s u m p t i o n t h a t a court, or judge acting as
such, w h e t h e r in the Philippines or elsewhere, was
acting in t h e lawful exercise of his jurisdiction (Sec. 3(n],
Rule 131). Such judicial record may be i m p e a c h e d by
evidence of w a n t of jurisdiction in the court or judicial
officer (Sec. 29, Rule 132).
S e c . 7. Action or defense based on document. —

W h e n e v e r an action or defense is based upon a
written instrument or document, the substance of
such i n s t r u m e n t or d o c u m e n t shall be set forth in
the pleading, and the original or a copy thereof shall
be attached to the pleading as an exhibit, which
shall be d e e m e d to be a p a r t of the pleading, or said
c o p y m a y w i t h l i k e effect b e s e t f o r t h i n t h e p l e a d i n g .
(7)
S e c . 8. How to contest such documents. — W h e r e

an action or defense is founded u p o n a w r i t t e n
instrument, copied in or attached to the
corresponding pleading as provided in the
preceding section, the genuineness and due
execution of the instrument shall be deemed
176
RULE 8 MANNER OF MAKING ALLEGATIONS SECS. 7-8
IN PLEADINGS
a d m i t t e d » n U M , t a » ad^CTuu p a i t y + - w d e r - ^ t h ,
s p e c i f i c a l l y de-mee-tfcero, a n d uviv • furUi w4mt he
c l a i m s to Ofi-the ~faets;^but t h e r e q u i r e m e n t of an
oath does not apply w h e n the adverse party does
not a p p e a r to be a p a r t y to t h e i n s t r u m e n t or w h e n
c o m p l i a n c e w i t h a n o r d e r for a n i n s p e c t i o n o f t h e
o r i g i n a l i n s t r u m e n t i s r e f u s e d . (8a)
NOTES
1. These two sections constitute the rule on action-

able d o c u m e n t s , a s d i s t i n g u i s h e d from e v i d e n t i a r y
documents. T h e r e are two permissible ways of pleading
an a c t i o n a b l e d o c u m e n t , i.e., (a) by s e t t i n g forth t h e
substance of such document in the pleading and
a t t a c h i n g the document t h e r e t o as an annex, or (b) by
s e t t i n g forth said d o c u m e n t v e r b a t i m in the pleading.
Unless alleged in any of these modes, the rule on implied
admission in Sec. 8 will not apply.
2. A variance in the substance of the document set

forth in the pleading and the document annexed thereto
does not w a r r a n t t h e dismissal of t h e action (Convets,
Inc. us. National Deuelopment Co., 103 Phil 46). However,
the contents of the document annexed are controlling.
3. Where the actionable document is properly

alleged, t h e f a i l u r e to deny t h e s a m e r e s u l t s in t h e
admission of t h e "genuineness and due execution" of said
document, except (a) when the adverse party was not a
party to the i n s t r u m e n t , and (b) when an order for the
inspection of the document (see Rule 27) was not complied
with.
4. By "genuiwcncoo" is m e a n t t h a t the document is

not s p u r i o u s , counterfeit, or of different import on its
face from t h e one e x e c u t e d hy t h e p a r t y (Bough us.
Cantiveros, 40 Phil. 208), or t h a t the party whose sig-
nature it bears has signed it and t h a t at the time it was
177
signed, it was in words and figures exactly as set out in

the pleadings (Hibberd vs. Rhode, 32 Phil. 476).
5. By "due-execution" is m e a n t t h a t the document
was signed voluntarily and knowingly by t h e p a r t y whose
s i g n a t u r e a p p e a r s t h e r e o n , t h a t if signed by somebody
else such r e p r e s e n t a t i v e had the a u t h o r i t y to do so, t h a t
i t w a s duly d e l i v e r e d , a n d t h a t t h e f o r m a l i t i e s w e r e
complied with (see Hibberd vs. Rhode, supra; Ramirez
vs. Orientalist Co., et al., 38 Phil. 634).
6. By t h e a d m i s s i o n of t h e g e n u i n e n e s s a n d due
execution of a document, such defenses as t h a t the sig-
n a t u r e was a forgery; or t h a t it was u n a u t h o r i z e d in t h e
case of an a g e n t signing in behalf of a p a r t n e r s h i p or of
a c o r p o r a t i o n ; or t h a t , in t h e c a s e of t h e l a t t e r , t h e
corporation was not authorized u n d e r its c h a r t e r to sign
t h e i n s t r u m e n t ; o r t h a t t h e p a r t y c h a r g e d signed t h e
i n s t r u m e n t in some o t h e r capacity t h a n t h a t alleged in
the pleading s e t t i n g it out; or t h a t it was never delivered,
are deemed cut off. But t h e failure to deny the genuine-
ness a n d due execution of t h e d o c u m e n t does not estop
a p a r t y from controverting it by evidence of fraud, mistake,
compromise, p a y m e n t , s t a t u t e of limitations, estoppel, and
w a n t of consideration (1 Martin 301, citing Hibberd vs.
Rhode, supra, and Bough vs. Cantiveros, supra).
7. E v e n w h e r e t h e opposing p a r t y failed to deny

under oath the authenticity and due execution of an
actionable d o c u m e n t properly alleged, he can still raise
t h e defense i n his a n s w e r a n d prove a t t h e t r i a l t h a t
t h e r e is a m i s t a k e or imperfection in t h e writing, or t h a t
it does not e x p r e s s the t r u e a g r e e m e n t of t h e p a r t i e s , or
t h a t t h e a g r e e m e n t is invalid or t h a t t h e r e is an intrinsic
ambiguity in t h e writing, as these exceptions to the parol
evidence rule (Sec. 9, Rule 130) a r e not cut off by, since
they a r e not inconsistent with, the implied admission of
t h e a u t h e n t i c i t y and due execution of the i n s t r u m e n t .
178
RULE 8 M A N N E R OF MAKING A L L E G A T I O N S SEC 9
IN PLEADINGS
8. In an action for the recovery of a parcel of land

claimed b y plaintiffs a s t h e i r h e r e d i t a r y s h a r e s , de-
fendants in t h e i r a n s w e r a t t a c h e d , by way of defense,
copies of t h e d e e d s of sale allegedly e x e c u t e d by
plaintiffs in favor of their brother over their s h a r e s in said
parcel of land, and a copy of the deed of sale thereafter
executed by said vendee in favor of the defendants. Said
original deeds of sale and the s u b s e q u e n t deed of sale in
favor of t h e defendants a r e actionable documents as they
constitute t h e i r defense to the action. P u r s u a n t to Sees. 7
and 8 of Rule 8, the authenticity and d u e execution of
said d e e d s of sale a r e impliedly a d m i t t e d by plaintiffs for
failure on t h e i r p a r t to file a reply u n d e r oath specifically
denying t h e s a m e . This implied admission, however, does
not apply to t h e o t h e r plaintiffs who are the heirs of one
of t h e (deceased) original v e n d o r s since they were not
p a r t i e s to the documents. F u r t h e r m o r e , it a p p e a r s t h a t
in their verified complaint, the plaintiffs alleged t h a t they
never sold t h e i r h e r e d i t a r y s h a r e s and, consequently, the
defendants were a w a r e t h a t they would be called upon to
establish the genuineness and due execution of said deeds
of sale. Accordingly, t h e S u p r e m e Court relieved the
plaintiffs of t h e effects of t h e i r implied a d m i s s i o n in
the i n t e r e s t of justice (Toribio, et al. us. Bidin, etc., et al.,
G.R. No. 57821, Jan. 17, 1985).
9. Where t h e case had been tried in disregard of the

rule on actionable documents and plaintiff presented oral
evidence to prove a u t h e n t i c i t y and due execution, and
failed to object to defendant's evidence in refutation, the
rule is deemed waived (Yu Chuck us. Kong Li Po, 46 Phil.
608), especially where both p a r t i e s acted in disregard of
or overlooked t h e rule at t h e t r i a l (Central Surety &
Insurance Co. us. Hodges, L-28633, Mar. 30, 1971).
S e c . 9. Official document or act. — In p l e a d i n g an

official d o c u m e n t o r official a c t i t i s s u f f i c i e n t t o
179
aver that the document was issued or the act done

i n c o m p l i a n c e w i t h l a w . (9)
S e c . 10. Specific denial. — A d e f e n d a n t m u s t

s p e c i f y e a c h m a t e r i a l a l l e g a t i o n o f fact t h e t r u t h
of which he does not admit and, w h e n e v e r prac-
t i c a b l e , s h a l l s e t forth t h e s u b s t a n c e o f t h e m a t t e r s
upon which he relies to support his denial. Where
a d e f e n d a n t d e s i r e s to d e n y o n l y a part of an
averment, he shall specify so m u c h of it as is true
and material and shall deny the remainder. Where
a d e f e n d a n t is w i t h o u t k n o w l e d g e or information
s u f f i c i e n t to form a b e l i e f as to t h e t r u t h of a m a t e r i a l
averment made in the complaint, he shall so state,
a n d t h i s s h a l l h a v e t h e e f f e c t o f a d e n i a l . (10a)
NOTES
1. T h e r e are two ways of m a k i n g a specific denial,

i.e., (a) b y s p e c i f i c a l l y d e n y i n g t h e a v e r m e n t a n d ,
w h e n e v e r possible, s e t t i n g forth t h e s u b s t a n c e of t h e
m a t t e r s r e l i e d u p o n for s u c h d e n i a l ; a n d (b) b y a n
allegation of lack of knowledge or information sufficient
to form a belief as to t h e t r u t h of t h e a v e r m e n t in t h e
opposing p a r t y ' s pleading.
2. Where t h e a v e r m e n t s in the opposing p a r t y ' s

pleading a r e based on d o c u m e n t s which a r e in t h e pos-
session of t h e defendant, or are p r e s u m e d to be known by
h i m , or a r e r e a d i l y a s c e r t a i n a b l e by h i m , a g e n e r a l
allegation of lack of knowledge or information thereof on
his p a r t will not be considered a specific denial but an
admission (see Warner, Barnes and Co., Ltd. vs. Reyes,
et al., 103 Phil. 662; Capitol Motors Corp. vs. Yabut,
L-28140, Mar. 19, 1970; New Japan Motors, Inc. vs.
Perucho, L-44387, Nov. 5, 1976; Gutierrez, et al. vs. CA,
et al., L-31611, Nov. 29, 1976). The defendant m u s t aver
or s t a t e positively how it is t h a t he is i g n o r a n t of t h e facts
180
RULE 8 M A N N E R OF MAKING ALLEGATIONS SEC 11
IN PLEADINGS
alleged (Phil. Advertising Counselors, Inc. vs. Revilla,

et al, L-31869, Aug. 8, 1973). Where the answer alleges
lack of k n o w l e d g e of t h e "exact a m o u n t d u e " to t h e
plaintiff, t h e s a m e will p r e c l u d e a j u d g m e n t on t h e
p l e a d i n g s b u t n o t a m o t i o n for s u m m a r y j u d g m e n t
if s u p p o r t e d by a d e q u a t e p r o o f (Phil. Bank of
Communications vs. Guitar Match Mfg. Co., Inc. 102
Phil. 1162 fUnrep.J).
3. Where the a n s w e r merely reproduces the recitals

in the complaint and denies such recitals without setting
forth the m a t t e r s relied upon in support of such denials
although it is practicable to do so, such answer contains
only general denials and j u d g m e n t on the pleadings is
p r o p e r (Sy-Quia, et al. vs. Marsman, ct al, L-23426,
Mar. 1, 1968).
4. A "negative p r e g n a n t " is t h a t form of d e n i a l

which at t h e s a m e time involves an affirmative impli-
cation favorable to the opposing party. Such a "negative
p r e g n a n t " is in effect an a d m i s s i o n of t h e a v e r m e n t
to which it is directed (1 Martin 306). It is said to be a
denial p r e g n a n t with an admission of the s u b s t a n t i a l
facts in the pleading responded to (Guevarra vs. Eala, A.C.
No. 7136, Aug. 6, 2007).
W h e r e a fact is alleged w i t h some qualifying or
modifying l a n g u a g e , a n d t h e d e n i a l is conjunctive, a
negative p r e g n a n t exists and only the qualification or
modification is denied, while the fact itself is admitted
(Ison vs. Ison, 115 SW 2d. 330, 272 Ky, 836). T h u s ,
where the complaint alleges t h a t the defendant deprived
plaintiff of possession on a claim of having p u r c h a s e d
the property from a third person, and the answer denies
merely t h e " m a t e r i a l a v e r m e n t s " and a s s e r t s t h a t the
defendant never claimed possessory rights based on the
alleged p u r c h a s e from such t h i r d p e r s o n , t h e r e is a
negative p r e g n a n t as the defendant has in effect, denied
only the qualification but not the averment t h a t he had
181
deprived t h e plaintiff of a c t u a l possession of t h e land

(Galofa vs. Nee Bon Sin, L-22018, Jan. 17, 1968).
5. The same rule applies in appellate proceedings
where the appellant's a s s i g n m e n t of error is to the effect
t h a t the conclusion of the Court of Appeals "is not sup-
p o r t e d by any direct t e s t i m o n i a l evidence." T h i s is a
n e g a t i v e p r e g n a n t a s s u c h c o n t e n t i o n does not deny
t h e e x i s t e n c e of i n d i r e c t t e s t i m o n i a l e v i d e n c e or of
d o c u m e n t a r y evidence (Taniayo us. Callejo, et al., L-
25563, July 28, 1972).
6. Where the suit is brought upon the c o n t r a c t u a l

obligation u n d e r t h e c o n t r a c t of c a r r i a g e c o n t a i n e d in
bills of lading, such bills of lading can be categorized as
a c t i o n a b l e d o c u m e n t s which u n d e r t h i s Rule m u s t b e
pleaded e i t h e r as causes of action or defenses, and the
g e n u i n e n e s s and execution of which are deemed a d m i t t e d
u n l e s s specifically d e n i e d u n d e r o a t h b y t h e a d v e r s e
party.
E v e n a s s u m i n g t h a t t h e p a r t y a g a i n s t w h o m said
p r o v i s i o n s in t h e bills of l a d i n g a r e a l l e g e d m a d e an
a v e r m e n t in its responsive pleading which a m o u n t s to a
denial, such denial is nonetheless pregnant with the
a d m i s s i o n of the s u b s t a n t i a l facts in t h e p l e a d i n g
responded to which a r e not squarely denied. T h u s , while
t h e r e s p o n d i n g p a r t y objected t o t h e v a l i d i t y o f t h e
a g r e e m e n t c o n t a i n e d in t h e bills of l a d i n g for b e i n g
contrary to public policy, t h e existence of t h e bills of lading
and t h e s t i p u l a t i o n s t h e r e i n a r e impliedly a d m i t t e d . The
denial m a d e by t h e responding p a r t y is w h a t is known in
t h e law on p l e a d i n g s as a negative p r e g n a n t a n d is in
effect an a d m i s s i o n of t h e a v e r m e n t it is d i r e c t e d to
(Philippine American General Insurance Co., et al. vs.
Sweet Lines, Inc., et al, G.R. No. 87434, Aug. 5, 1992).
S e c . 11. Allegations not specifically denied deemed

admitted. — IVLatexial-averment in t h e c o m p l a i n t ,
182
RULE 8 MANNER OF MAKING ALLEGATIONS SEC 11
IN PLEADINGS
o t h e r the** t h o s e a s t o t h e - a m o u n t o f u n l i q u i d a t e d
d a m a g e s , shall be d e e m e d a d m i t t e d when- not
specifically d e n i e d . Allegations of usury in a
c o m p l a i n t t o r e c o v e r u s u r i o u s i n t e r e s t are d e e m e d
a d m i t t e d i f n o t d e n i e d u n d e r o a t h , ( l a , R9)
NOTES
1. The following a v e r m e n t s in the complaint are

not d e e m e d a d m i t t e d e v e n if not specifically d e n i e d :
(«rj allegations as to the amount of damages, (b) allegations
which are i m m a t e r i a l to the cause of action (Worcester
vs. Lorenzana, 104 Phil. 134), which includes conclusions
of fact and law, inferences, etc., and (c)'all allegations in
the c o m p l a i n t w h e r e no a n s w e r h a s been filed by t h e
defendant (Lopez vs. Mendezona, 11 Phil. 209; Worcester
vs. Lorenzana, supra).
2. The following a v e r m e n t s in t h e complaint a r e

deemed admitted even if specifically denied: (a) allegations
as to usury, and (b) the authenticity and due execution
of a c t i o n a b l e d o c u m e n t s p r o p e r l y p l e a d e d w h e r e t h e
opposing p a r t y was a p a r t y t h e r e t o . Mere specific denial
is insufficient as t h e Rules require t h a t such denial must
be under oath.
3. However, it h a s been held t h a t t h e rule t h a t

allegations of usury are deemed admitted if not denied
specifically and u n d e r oath is a procedural rule and the
lack of an oath in a pleading is a defect which is subject
to waiver j u s t as a defective or imperfect verification may
be waived. Besides, the reglementary admission of the
allegation of usury arising from failure to make a denial
under oath may, like any other admission in court, be
w i t h d r a w n w i t h leave of c o u r t u n d e r Secs. 2 a n d 3,
Rule 10 which permit substantial amendment of pleadings
once as a m a t t e r of right when the action has not been
placed on the trial calendar or, after the case is set for
183
hearing, upon leave of court (Dionisio vs. Puerto, et al.,

L-39452, Oct. 31, 1974).
See, in t h i s connection, t h e case of Liam Law vs.
Olympic Sawmill, et al., supra, cited u n d e r Note 3 of
Sec. 10, Rule 6 and the discussion thereon.
4. Where the defendant relied solely on his defense

of res judicata and s u b m i t t e d t h e case for decision on
t h a t issue, he is deemed to have a d m i t t e d all t h e m a t e r i a l
allegations in the complaint and j u d g m e n t can be
r e n d e r e d accordingly (Dominguez vs. Filipinos Integrated
Services Corp., et al., G.R. No. 58820, Sept. 30, 1982).
S e c . 12. Striking out of pleading or matter

contained therein. — U p o n m o t i o n m a d e by a p a r t y
before r e s p o n d i n g to a p l e a d i n g or, if no r e s p o n s i v e
pleading is permitted by these Rules, upon motion
m a d e b y a p a r t y w i t h i n t w e n t y (20) d a y s a f t e r t h e
service of the pleading upon him, or upon the court's
own initiative at any time, the court may order any
pleading to be stricken out or that any sham or
false, r e d u n d a n t , i m m a t e r i a l , i m p e r t i n e n t , or
scandalous matter be stricken out therefrom.
(5, R9)
184
RULE 9
E F F E C T OF FAILURE TO PLEAD
S e c t i o n 1. Defenses and objections not pleaded. —

D e f e n s e ^ 4 ^ d o b j e c t i o n s n o Impleaded e i t h e r i n a
motion t o d i s m i s s - o r i n the a n s w e r are d e e m e d
waived. However, w h e n it appears from the
pleadings or the evidence on record that the court
has no jurisdiction over the subject matter, that
there is another action pending between the same
p a r t i e s for t h e s a m e c a u s e , o r t h a t t h e a c t i o n i s
barred by a prior j u d g m e n t or by s t a t u t e of
l i m i t a t i o n s , t h e c o u r t s h a l l d i s m i s s t h e c l a i m . (2a)
NOTES
1. U n d e r t h i s a m e n d e d p r o v i s i o n , t h e following
defenses a r e not waived even if not raised in a motion to
dismiss or in the answer: (a") lack of jurisdiction over the
subject m a t t e r ; (b~) litis pendentia; (c) res judicata; and
(d) prescription of the action.
2. The omnibus motion rule in the former Sec. 2 of
this Rule also provided, as an exception t h e r e t o , "the
failure to s t a t e a cause of action which may be alleged in
a l a t e r pleading, if one is p e r m i t t e d , or by motion for
j u d g m e n t on t h e pleadings, or at the trial on the merits;
but in the last instance, the motion shall be disposed of
as provided in Section 5, Rule 10 in t h e light of any
evidence which may have been received."
T h a t ground and the alternative bases for consider-
ing it, in the event it was not alleged in either a motion
to d i s m i s s or in t h e a n s w e r , h a s been deleted as an
exception to the omnibus motion rule. The alternative
ways for posing t h i s g r o u n d for c o n s i d e r a t i o n of the
court in other pleadings, t h a t is, in a later pleading if
185
p e r m i t t e d or by motion for j u d g m e n t on t h e pleadings,

are contingent on future events and will only result in
delay. On t h e other h a n d , t h e failure to s t a t e a cause
of a c t i o n s h o u l d be c h a l l e n g e d in e i t h e r a m o t i o n to
dismiss or in the a n s w e r so t h a t t h e case will not proceed
for consideration, despite such omission, upon a defective
and insufficient complaint which could have been remedied
in the first instance by the plaintiff duly r e s p o n d i n g to
t h e objection on t h a t ground. If t h a t ground is correctly
r a i s e d in a motion to d i s m i s s , or in t h e a n s w e r as an
affirmative defense, the court can a l w a y s allow
a m e n d m e n t of t h e complaint a n d t h e case will proceed to
t r i a l sans t h a t defect. If t h e complaint is dismissed on
t h a t g r o u n d , t h e plaintiff c a n refile his c o m p l a i n t a s
such dismissal does not normally constitute an adjudication
on t h e m e r i t s .
T h e foregoing o b s e r v a t i o n s refer t o t h e s i t u a t i o n
w h e r e the complaint or o t h e r initiatory pleading fails to
allege facts c o n s t i t u t i v e of a c a u s e of action. W h a t is
c o n t e m p l a t e d , therefore, is a failure to state a e a u s e of
action which is provided in Sec. 1(g) of Rule 16. This-is a
m a t t e r of insufficiency of t h e pleading. Sec. 5 of Rule 10,
w h i c h w a s also i n c l u d e d a s t h e l a s t m o d e for -raising
t h e issue to t h e court, refers to t h e s i t u a t i o n w h e r e t h e
evidence does not prove a cause of action. T-hisis, therefore,
a m a t t e r of insufficiency of t h e evidence. F a i l u r e to s t a t e
a cause of action is different from failure to prove a cause
of action. The-remedy in t h e first is to move for dismissal
of t h e pleading, while t h e remedy in t h e second is te-demur
to t h e evidence, hence reference to Sec. 5 of Rule-1-0 h a s
been e l i m i n a t e d in t h i s section. The p r o c e d u r e would
consequently be to r e q u i r e t h e pleading to s t a t e a cause
of action, by timely objection to its deficiency; or, at the
trial, to file a d e m u r r e r to t h e evidence, if such motion is
warranted.
186
RULE 9 EFFECT OF FAILURE TO PLEAD SEC. 1
3. The objection on jurisdictional grounds which is

not waived even if not alleged in a motion to dismiss or
the a n s w e r is lack of jurisdiction over the subject-matter.
Lack of jurisdiction over the nature of the action has been
eliminated in Rule 16 of these revised Rules, although
t h a t objection may possibly be raised in other pleadings
or p r o c e e d i n g s . Lack of jurisdiction over t h e subject-
m a t t e r can always be raised anytime, even for the first
time on a p p e a l , since j u r i s d i c t i o n a l i s s u e s c a n n o t be
waived but subject, however, to the principle of estoppel
by laches.
4. The'defense of litis pendentia has been included

in t h e exceptions to t h e g e n e r a l rule on waiver in this
a m e n d e d section by r e a s o n of t h e fact t h a t , since t h e
other case is still pending, a resolution of t h e objection
raised on this ground should properly await the resolution
of and t h e developments in t h e other pending case. Upon
t h e o c c u r r e n c e of t h e r e l e v a n t c o n t i n g e n c i e s in t h a t
o t h e r case, t h i s objection may t h e n be r a i s e d , u n l e s s
already s u b m i t t e d to the court, which by then would be
in a b e t t e r p o s i t i o n to a p p r e c i a t e t h e m e r i t s of t h i s
objection.
5. Res judicata and prescription of the claim have

also been a d d e d as exceptions since they a r e g r o u n d s
for e x t i n g u i s h m e n t of t h e claim. It would a p p e a r to be
unduly technical, if not contrary to the rule on unjust
e n r i c h m e n t , to have t h e defending p a r t y r e s p o n d all
over again for t h e same claim which has already been
resolved or is no longer recoverable under the law. It is
worth mentioning in this connection t h a t , in Sec. 5 of
Rule 16 as a m e n d e d , an o r d e r g r a n t i n g a motion to
dismiss on t h e g r o u n d s , inter alia, of res judicata or
prescription shall bar the refiling of the same action or
claim.
187
6 . T h e p r e s e n c e o f a n y o f t h e s e four g r o u n d s
authorizes the court to motu proprio dismiss the claim,
t h a t is, the claims a s s e r t e d in a complaint, counter claim,
cross-claim, third (fourth, etc.)-party complaint or
complaint-in-intervention (see Sec. 2, Rule 6). In order
t h a t it may do so, it is necessary t h a t t h e constitutive
facts of such grounds, if not in the a n s w e r with evidence
duly adduced therefor, should a p p e a r in the other
pleadings filed or in the evidence of record in t h e case.
7. Specifically with respect to t h e defense of pre-

s c r i p t i o n , t h e p r e s e n t provision is s i m i l a r to t h e r u l e
a d o p t e d i n civil c a s e s , b u t d i s s i m i l a r t o t h e r u l e a n d
r a t i o n a l e in c r i m i n a l cases. In civil cases, it h a s been
held t h a t the defense of prescription may be considered
only if t h e s a m e is invoked in t h e a n s w e r , except w h e r e
t h e fact of prescription a p p e a r s in t h e allegations in the
c o m p l a i n t or t h e e v i d e n c e p r e s e n t e d by t h e plaintiff,
in which case such defense is not deemed waived
(Ferrer vs. Ericta, et al., L 41761, Aug. 23, 1978; Garcia
vs. Mathis, et al., L-48577, Sept. 30, 1980). It would
thus appear t h a t the non-waiver is dependent on the
t i m e l i n e s s of invocation of t h e defense, or w h e r e such
defense is a m a t t e r of record or evidence.
8. In criminal cases, the s a m e general rule on waiver

of any ground for a motion to q u a s h also o b t a i n s w h e r e
t h e accused fails to a s s e r t t h e s a m e e i t h e r b e c a u s e he
did not file such motion before he p l e a d e d or failed to
allege s u c h g r o u n d t h e r e i n . E x c e p t e d from t h i s r u l e ,
h o w e v e r , is t h e g r o u n d of p r e s c r i p t i o n e i t h e r of t h e
offense or t h e penalty, t h a t is, t h a t t h e criminal action or
liability h a s been e x t i n g u i s h e d (Sec. 9, Rule 117). This
provision does not r e q u i r e the qualifications of season-
able i n v o c a t i o n or r e c o r d e d fact of t h e g r o u n d of
prescription as discussed above for civil actions. Instead,
said provision is evidently based on t h e r u l i n g s of t h e
S u p r e m e Court t h a t objection on the ground of
188
p r e s c r i p t i o n of t h e c r i m e is not w a i v e d e v e n if not
raised before t h e plea, since prescription is a substantive
r i g h t w h i c h c a n n o t be d e f e a t e d by p r o v i s i o n s of a
procedural law (People vs. Moran, 44 Phil. 387; People
vs. Castro, 95 Phil. 462). For t h a t m a t t e r , such objection
may even be raised for the first time on appeal (People
vs. Balagtas, 105 Phil. 1362 fUnrep.J; Escano, et al. vs.
Geronimo, [CA], 60 O.G. 8497).
S e c . 2. Compulsory counterclaim, or cross-claim, not

set up barred. — A c o m p u l s o r y c o u n t e r c l a i m , or a
c r o s s - c l a i m , n o t s e t u p s h a l l b e barred. (4a)
NOTES
1. See notes u n d e r Secs. 7 and 8, Rule 6.

2. Where, in a first action a g a i n s t him, t h e com-
pulsory c o u n t e r c l a i m of d e f e n d a n t w a s d i s m i s s e d for
non-payment of docket fee, such dismissal is not a bar
to his filing of t h e s a m e counterclaim in a s u b s e q u e n t
action i n s t i t u t e d b y t h e plaintiff involving t h e s a m e
subject-matter. The dismissal of said counterclaim
does not c o n s t i t u t e res judicata because it w a s not a
determination on the merits of the counterclaim. Also,
the dismissal of said counterclaim having been
u n q u a l i f i e d , h e n c e w i t h o u t p r e j u d i c e , i t d o e s not
constitute an adjudication on the merits since this rule
in Sec. 2, Rule 17 applies not only to a complaint but
also to a counterclaim which p a r t a k e s of the n a t u r e of a
complaint. This is aside from t h e consideration t h a t ,
since the dismissal of the counterclaim was premised on
the postulate t h a t for non-payment of the docket fee the
court did not acquire jurisdiction thereover, t h e n with
much more r e a s o n can t h e r e be no invocation of res
judicata, not to speak of the fact t h a t it was error for
the trial court to order such dismissal since the
payment of docket fees is required only for permissive,
189
not compulsory, counterclaims (Meliton vs. CA, et al.,

G.R. No. 101883, Dec. 11, 1992).
S e c . 3. Default; declaration of. — If t h e d e f e n d i n g

party fails to a n s w e r within the time allowed
therefor, the court shall, upon motion of the
c l a i m i n g party with notice to the d e f e n d i n g party,
and proof of such failure, declare the defending
party in default. Thereupon, the court shall proceed
to render judgment granting the claimant such
relief as his pleading may warrant, unless the court
in its d i s c r e t i o n r e q u i r e s the c l a i m a n t to s u b m i t
evidence. Such reception of evidence may be
d e l e g a t e d t o t h e c l e r k o f c o u r t , ( l a , R18)
(a) Effect of order of default. — A p a r t y in d e f a u l t
shall be entitled to notice of s u b s e q u e n t proceedings
b u t n o t t o t a k e p a r t i n t h e t r i a l . (2a, R18)
(b) Relief from order of default. — A p a r t y d e c l a r e d
in default may at any time after notice t h e r e o f and
b e f o r e j u d g m e n t file a m o t i o n u n d e r o a t h t o s e t a s i d e
the order of default upon proper showing that his
failure to a n s w e r was due to fraud, accident,
mistake or excusable negligence and that he has a
meritorious defense. In such case, the order of
default may be set aside on such terms and
conditions as the judge may impose in the interest
o f j u s t i c e . (3a, R18)
(c) Effect of partial default. — W h e n a p l e a d i n g
a s s e r t i n g a claim states a c o m m o n c a u s e of action
against several defending parties, some of whom
a n s w e r a n d t h e o t h e r s fail t o d o s o , t h e c o u r t s h a l l
t r y t h e c a s e a g a i n s t all u p o n t h e a n s w e r s t h u s filed
and render judgment upon the evidence presented.
(4a, R18)
190
(d) Extent of relief to be awarded. — A j u d g m e n t

rendered a g a i n s t a party in default shall not exceed
t h e a m o u n t o r b e d i f f e r e n t i n k i n d from t h a t p r a y e d
for n o r a w a r d u n l i q u i d a t e d d a m a g e s . (5a, R18)
(e) Where no defaults allowed. — If t h e d e f e n d i n g
party i r f a n a c t i o n for a n n u l m e n t o r d e c l a r a t i o n o f
n u l l i t y of m a r r i a g e or for l e g a l s e p a r a t i o n fails to
answer, the court shall order the prosecuting
attorney to investigate w h e t h e r or not a collusion
between the parties exists, and if there is no
c o l l u s i o n , t o i n t e r v e n e for t h e S t a t e i n o r d e r t o s e e
to it that the e v i d e n c e submitted is not fabricated.
(6a, R18)
' ' ^ N O T E S ' " —
1. An order of default should be distinguished from

a j u d g m e n t by default. An order of default is issued by
the court, on p l a i n t i f f s motion and at the s t a r t of the
p r o c e e d i n g s , for f a i l u r e of t h e d e f e n d a n t to file his
responsive p l e a d i n g seasonably. It is only thereafter,
when t h e evidence for the plaintiff has been received ex
parte, that the court renders a judgment by default on
the basis of such evidence.
2. This section provides for the extent of the relief
t h a t may be a w a r d e d in the j u d g m e n t by default, i.e.,
only so much as has been alleged and proved. The court
acts in excess of j u r i s d i c t i o n if it a w a r d s an a m o u n t
beyond the claim made in the complaint or beyond t h a t
proved by the evidence. F u r t h e r m o r e , as amended, no
unliquidated d a m a g e s can be awarded and said j u d g m e n t
shall not exceed the a m o u n t or be different in kind from
that prayed for. If the claim is not proved, the case should
be dismissed (Pascua, et al. us. Florendo, et al., L-38047,
April 30, 1985).
191
3. F a i l u r e to file a responsive pleading within the

r e g l e m e n t a r y period, a n d not failure t o a p p e a r a t t h e
hearing, is the sole ground for an order of default (Rosario,
et al. vs. Alonzo, et al, L-17320, June 29, 1963), except
t h e failure to a p p e a r at a p r e - t r i a l conference w h e r e i n t h e
effects of a d e f a u l t on t h e p a r t of t h e d e f e n d a n t a r e
followed, t h a t is, t h e plaintiff shall be allowed to p r e s e n t
evidence ex parte and a j u d g m e n t based t h e r e o n may be
r e n d e r e d a g a i n s t t h e d e f e n d a n t (Sec. 5, Rule 18). Also,
a default j u d g m e n t may be rendered, even if t h e defendant
had filed his a n s w e r , u n d e r t h e c i r c u m s t a n c e in Sec. 3(c),
Rule 29.
4. The court c a n n o t motu proprio declare a defen-

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

motu proprio or on motion of the party asserting the claim.
5. The defendant who files his a n s w e r in court in
time but failed to serve a copy thereof upon the adverse
p a r t y may validly be declared in default (Gonzales vs.
Francisco, 49 Phil. 747; Banares vs. Flordeliza, et al., 51
Phil. 786).
6. T h e fact t h a t t h e d e f e n d a n t w a s d e c l a r e d in
default is of no m o m e n t w h e n t h e plaintiff would not
have been entitled to relief since his complaint did not
state a cause of action, hence the same should be dismissed
(Reyes vs. Tolentino, et al., L-29142, Nov. 29, 1971).
7. It is within the discretion of the trial court to set

a s i d e a n o r d e r o f d e f a u l t a n d p e r m i t t h e filing o f
defendant's a n s w e r even beyond the r e g l e m e n t a r y
period, or to refuse to set aside the default order where it
finds no justification for t h e delay in the filing of the
a n s w e r (Malipod vs. Tan, L-27730, Jan. 21, 1974).
However, defendant's answer should be admitted where
it was filed before he had been declared in default and
no p r e j u d i c e could h a v e b e e n c a u s e d to plaintiff, as
default j u d g m e n t s a r e generally disfavored (Trajano,
et al. vs. Cruz, et al, supra). Where the answer is filed
beyond the r e g l e m e n t a r y period but before the defendant
was declared in default, and t h e r e is no showing t h a t
defendant intended to delay the case, the answer should
be a d m i t t e d (Cathay Pacific Airways, Ltd. vs. Romillo,
etc., et al, G.R. No. 64276, Mar. 4, 1986). Also, where
the failure of d e f e n d a n t to seasonably file her a n s w e r
is excusable and the lifting of the default order will not
in any way prejudice plaintiff's s u b s t a n t i a l rights, the
court should apply the Rules liberally and set aside the
default order (Santos vs. De la Fuente Samson, et al,
L-46371, Dec. 14, 1981; cf. Akut vs. CA, et al, L-45472,
Aug. 30, 1982; Azul, et al. vs. Castro, et al, G.R.
No. 52241, Nov. 19, 1984).
193
RULE 9 R E M E D I A L LAW COMPENDIUM SEC. 3
8. A motion to lift an o r d e r of d e f a u l t should be

u n d e r oath or verified and accompanied by an affidavit of
m e r i t s . T h e r e q u i r e m e n t s of Sec. 3 of t h i s Rule a r e
practically identical to those of Sec. 3, Rule 38 (The Phil.
British Co., Inc. vs. De los Angeles, etc., et al., supra;
Claridad, et al. vs. Santos, et al., L-29594, Jan. 27, 1983).
H o w e v e r , if t h e motion to lift t h e o r d e r of d e f a u l t is
grounded on t h e very root of t h e proceedings, i.e., invalid
service of s u m m o n s on the defendant, affidavits of m e r i t s
a r e not necessary (Ponio vs. IAC, et al., G.R. No. 66782,
Dec. 20, 1984).
Also, if the motion to lift an order of default is u n d e r
oath a n d contains t h e r e a s o n s for the failure to a n s w e r ,
as well as t h e prospective defenses, a s e p a r a t e affidavit
of m e r i t s a n d a v e r i f i c a t i o n a r e not n e c e s s a r y (Lim
Tanhu, et al. vs. Ramolete, et al, L-40098, Aug. 29, 1975;
Azul, et al. vs. Castro, et al., supra).
9. Where a motion to lift an order of default is denied

and a motion for t h e reconsideration of said denial order
is filed based on s u b s t a n t i a l l y t h e s a m e g r o u n d s , said
motion for reconsideration is not pro forma as it is directed
a g a i n s t an interlocutory, a n d not a final, order a n d the
r e i t e r a t i o n of t h e s a m e g r o u n d s seeks a second look by the
court on t h e m e r i t s of said g r o u n d s (BA Finance Corp. vs.
Pineda, et al., G.R. No. 61628, Dec. 29, 1982).
10. The motion to lift t h e order of default, aside from

t h e r e q u i r e m e n t s in Sec. 3 of this Rule, m u s t f u r t h e r show
t h a t t h e d e f e n d a n t h a s a m e r i t o r i o u s defense o r t h a t
s o m e t h i n g would be gained by having the o r d e r of
d e f a u l t s e t a s i d e (Carandang vs. Cabatuando, et al.,
L-25384, Oct. 26, 1973). O t h e r w i s e , and if t h e motion is
not accompanied by affidavits of m e r i t s , it may properly
be denied (Ong Peng vs. Custodio, L-14911, Oct. 26, 1961;
The Phil. British Co., Inc., et al. vs. De los Angeles, etc.,
et al., supra).
194
1 1 . T h e former r u l e w a s t h a t w h e r e a p a r t y had
moved to set aside the order of default, he was entitled to
copies o f all p l e a d i n g s a n d o r d e r s filed a n d i s s u e d
thereafter. If he had not done so, he was still entitled to
be served with copies of substantially amended or sup-
p l e m e n t a l pleadings, as well as final orders or j u d g m e n t s .
The qualifications were rationalized as follows:
He must be served with amended pleadings and
s u p p l e m e n t a l pleadings as he may be entitled to plead
thereto. T h u s , if the defendant was declared in default
upon an original complaint, t h e filing of t h e a m e n d e d
c o m p l a i n t r e s u l t e d in t h e w i t h d r a w a l of t h e o r i g i n a l
complaint, hence t h e defendant was entitled to file an
answer to the amended complaint as to which he was not
in default. If t h e s u p p l e m e n t a l pleading introduced new
claims, he was entitled to plead thereto as jurisdiction had
not been acquired over him in respect thereof.
He had to be served with a copy of the j u d g m e n t by
default as he had t h e right to appeal therefrom and in
said appeal he may, aside from attacking the propriety
of the relief t h e r e i n awarded, assign as error the order of
t h e c o u r t d e c l a r i n g him in default, or refusing to set
aside such order, or denying a motion for new trial as
the case may be.
T h i s w a s b e c a u s e t h e n Sec. 2 of Rule 18 r e a d :
"Except as provided in Section 9 of Rule 13, a p a r t y
d e c l a r e d in d e f a u l t s h a l l not be e n t i t l e d to notice of
s u b s e q u e n t proceedings, nor to take p a r t in t h e trial."
T h i s r u l e w a s c o n s i d e r e d too h a r s h , h e n c e , a s now
amended, p a r . (a) of t h i s section simply provides t h a t
while a p a r t y in default cannot take p a r t in the trial, he is
nonetheless entitled to notice of subsequent proceedings
without the qualifications under the former practice.
12. If the court sets aside the order of default, the
defendant is restored to his standing and rights in the
action. However, proceedings already taken are not to
195
be disturbed (Jaime vs. Maniego, 101 Phil. 828), although

it is w i t h i n t h e discretion of t h e c o u r t to re-open t h e
evidence submitted by the plaintiff and enable the
defendant to challenge the s a m e , as by cross-examination
of p l a i n t i f f ' s w i t n e s s e s or i n t r o d u c i n g c o u n t e r v a i l i n g
e v i d e n c e (see Denso [Phil.], Inc. vs. IAC, et al., G.R.
No. 75000, Feb. 27, 1987). The lifting of an order of default
does not r e v e r t t h e case to its pre-trial stage, much less
r e n d e r a second p r e - t r i a l m a n d a t o r y (DBP vs. CA, et al.,
L-49410, Jan. 26, 1989).
13. U n d e r t h e former procedure, and t h e s a m e would

hold t r u e u n d e r t h e p r e s e n t a m e n d e d Rules, t h e alter-
native and successive r e m e d i e s of a p a r t y properly
declared in default in t h e former Court of F i r s t I n s t a n c e
were: (1) He may file a verified motion to set aside t h e
order of default at any time after discovery thereof and
before j u d g m e n t ; (2) If he did not file one or t h e s a m e
was denied, he could file a motion for new t r i a l at any
time after service of j u d g m e n t by default a n d w i t h i n 30
days therefrom; (3) If he failed to file said motion or t h e
s a m e w a s denied, he could perfect his a p p e a l from and on
t h e m e r i t s of said j u d g m e n t by default w i t h i n t h e balance
of said 30-day period; a n d (4) If he failed to t a k e any of
such s t e p s , he could file a petition for relief from j u d g m e n t
within 60 days from notice of t h e j u d g m e n t b u t w i t h i n 6
m o n t h s from e n t r y thereof (see Lina vs. CA, et al., G.R.
No. 62397, April 9, 1985).
It should be noted, however, t h a t u n d e r B.P. Blg. 129
a n d t h e I n t e r i m Rules, t h e r e g l e m e n t a r y period to a p p e a l
h a s been uniformly set at 15 days, except in habeas corpus
cases for which t h e 48-hour period h a s been m a i n t a i n e d ,
and in special proceedings or cases wherein multiple
appeals are p e r m i t t e d and in which cases the r e g l e m e n t a r y
period is still 30 days. Considering the fact t h a t t h e period
for filing a motion for new t r i a l is c o t e r m i n o u s with the
r e g l e m e n t a r y period for appeal, the 30-day periods for the
s e c o n d a n d t h i r d r e m e d i e s a b o v e s t a t e d w o u l d now
196
apply only to special proceedings and cases susceptible of

multiple appeals, with the first and fourth remedies being
a v a i l a b l e as before. In all o t h e r civil a c t i o n s , all t h e
abovestated remedies from a default j u d g m e n t are still
available, it being understood, however, t h a t the remedy
of new t r i a l and appeal should now be availed of within
15 days from receipt of the j u d g m e n t by default.
14. Where however, the defendant was improperly

declared in default, as w h e r e the reglementary period to
a n s w e r had not yet expired, he can, if such default order
is not lifted, e l e v a t e t h e m a t t e r by c e r t i o r a r i w i t h o u t
waiting for t h e default j u d g m e n t (Viacrusis vs. Estenzo,
L-18457, June 30, 1962; Pioneer Insurance & Surety
Corp. vs. Hontanosas, L-35951, Aug. 31, 1977). If a
default j u d g m e n t was already rendered, he can also resort
immediately to certiorari as his challenge is on the nullity
of both t h e order and the j u d g m e n t by default and not
on the m e r i t s or correctness of the j u d g m e n t (Matute vs.
CA, et al., L-26751, Jan. 3, 1969), especially where a writ
of execution was already issued, hence appeal would not
be a s p e e d y a n d a d e q u a t e r e m e d y (Omico Mining &
Industrial Corp. vs. Vallejos, et al., L-38974, Mar. 25,
1975; Zenith Insurance Corp. vs. Purisima, et al., G.R.
No. 57535, May 24, 1982).
15. It has also been held t h a t while, as a general
rule, certiorari may not be availed of where an appeal is
available a n d an appeal lies from a j u d g m e n t by default,
nevertheless if t h e r e was grave abuse of discretion on the
p a r t of t h e trial court, the special civil action of certiorari
may be availed of by the aggrieved party as this is an
exception to said general rule. Certiorari would provide a
more speedy and a d e q u a t e remedy since the aggrieved
party in a default j u d g m e n t had no opportunity to adduce
evidence in the trial court; hence, on appeal, only the self-
serving evidence presented by the plaintiff in the ex parte
reception thereof would be considered (Continental Leaf
197
Tobacco [Phil.], Inc. vs. CA, et al., G.R. No. 69243,

Nov. 22, 1985).
16. A p e t i t i o n for relief from t h e o r d e r of default
m a y be filed at any t i m e after discovery of t h e default
order a n d before j u d g m e n t (Turqueza vs. Hernando, etc.,
et al., G.R. No. 51626, April 30, 1980). Said o r d e r of
default, however, is not a p p e a l a b l e as t h e s a m e is an
i n t e r l o c u t o r y o r d e r (Vda. de Hoyo-a, et al. vs. Virata,
et al., G.R. No. 71171, July 23, 1985) a n d t h e s a m e is t r u e
w i t h an order d e n y i n g a motion for t h e r e c o n s i d e r a t i o n
of t h e default order.
17. It h a s also b e e n h e l d , h o w e v e r , t h a t w h i l e a
default order, being interlocutory, is not a p p e a l a b l e , an
order d e n y i n g a p e t i t i o n for relief, s e e k i n g to set aside
an order of default, is not merely interlocutory but
final a n d , t h e r e f o r e , a p p e a l a b l e (Rodriguez, et al. vs.
IAC, et al, G.R. No. 74816, Mar. 17, 1987).
18. It should not be overlooked t h a t p a r . (c) of t h i s

section, which enunciates the rule on p a r t i a l default,
does not apply w h e r e t h e defending p a r t i e s a r e jointly
s u e d or i m p l e a d e d u n d e r s e p a r a t e c a u s e s of action. It
c o n t e m p l a t e s a claim or s u i t u p o n a c o m m o n c a u s e of
action a g a i n s t s e v e r a l defending p a r t i e s at l e a s t one of
w h o m files an a n s w e r while t h e o t h e r s a r e in default.
19. If t h e a n s w e r i n g d e f e n d a n t succeeds in defeating

t h e p l a i n t i f f s claim, such r e s u l t i n u r e s also to t h e benefit
of t h e d e f a u l t i n g d e f e n d a n t s (Velez vs. Ramos, 10 Phil.
788; Bringas vs. Hernando, G.R. No. 51933, Sept. 24,
1986).
2 0 . W h e r e a c o - d e f e n d a n t w h o filed h i s a n s w e r
died a n d t h e case w a s dismissed a s t o him, t h e a n s w e r h e
filed does not i n u r e to t h e benefit of t h e d e f e n d a n t who
did not file his own a n s w e r . N e i t h e r will t h e rule apply
where the defenses alleged by the defendant who
198
answered are personal to him (Luzon Surety Co., Inc. us.

Magbonuo, et al., L-43851, July 30, 1976).
2 1 . The d e f e n d a n t who failed to a n s w e r s h a l l be

declared in default and is deprived of the right to take
p a r t in the trial and, in effect, he submits to w h a t e v e r
decision may be rendered on the basis of the a n s w e r and
evidence adduced by t h e a n s w e r i n g co-defendant (Lim
Tanhu us. Ramolete, etc., et al., L-40098, Aug. 29, 1975;
cf. Co us. Acosta, et al, G.R. No. 64591, Jan. 17, 1985).
22. There is no provision of the Rules disqualifying

a p a r t y declared in default from taking the witness stand
for h i s c o - d e f e n d a n t s . T h e specific e n u m e r a t i o n of
d i s q u a l i f i e d w i t n e s s e s e x c l u d e s t h e o p e r a t i o n of t h e
causes of disability o t h e r t h a n to those m e n t i o n e d in
Secs. 19, 20 and 2 1 , Rule 130. The provision of t h e n
Sec. 2, Rule 18 to t h e effect t h a t "a p a r t y declared in
default s h a l l not be e n t i t l e d to notice of s u b s e q u e n t
proceedings nor to t a k e p a r t in the trial" (now, par. [a]
of this section, as amended) means only the forfeiture of
the defaulting party's rights as a party litigant and not
a disqualification from merely testifying as a witness.
The incidental benefit of giving the party in default the
opportunity to p r e s e n t evidence which may eventually
redound to his a d v a n t a g e , through his co-defendants, is
of minor consequence. There is no reason why the non-
defaulting d e f e n d a n t s should be deprived of the
testimony of the party in default and thereby also suffer
the c o n s e q u e n c e s of t h e l a t t e r ' s p r o c e d u r a l omission
(Cauili, et al. us. Florendo, et al., G.R. No. 73039, Oct. 9,
1987, and cases jointly decided therein).
2 3 . U n d e r par. (c) of this section, when a common

cause of action is alleged against several defendants, two
of w h o m seasonably filed their answers while the others
were declared in default, the answers of the former inure
to t h e b e n e f i t of t h e l a t t e r a n d all t h e d e f e n d a n t s ,
199
defaulted and not defaulted, s h a r e a common fate in the

action. It is not within the authority of the trial court to
divide the case before it by first dismissing the same, on
m o t i o n of t h e plaintiff, as a g a i n s t t h e n o n - d e f a u l t e d
defendants and thereafter hearing it ex parte as a g a i n s t
the defaulted defendants and rendering a default
j u d g m e n t a g a i n s t t h e m . This is an unfair procedure and
deprives the defaulted defendants of due process as
they a r e thereby denied the benefit of t h e a n s w e r and the
evidence which could have been p r e s e n t e d by t h e i r non-
defaulted co-defendants, and which could be considered
in favor of all. F u r t h e r , said order of dismissal divested
t h e t r i a l court of t h e jurisdiction to proceed with t h e case
since all t h e d e f e n d a n t s a r e obligors in solidum, hence
indispensable p a r t i e s (Lim Tanhu, et al. us. Ramolete, etc.,
et al., supra).
24. T h e p e r t i n e n t p r o v i s i o n s o f t h e Civil Code

provided as follows—
"Art. 88. No j u d g m e n t a n n u l l i n g a m a r r i a g e shall
be p r o m u l g a t e d u p o n a s t i p u l a t i o n of facts or by
confession of j u d g m e n t .
In case of n o n - a p p e a r a n c e of t h e d e f e n d a n t t h e
provisions of article 101, p a r a g r a p h 2, shall be
observed."
"Art. 101. No decree of legal s e p a r a t i o n shall be
p r o m u l g a t e d u p o n a s t i p u l a t i o n of f a c t s or by
confession of j u d g m e n t .
In case of n o n - a p p e a r a n c e of t h e defendant, t h e
court shall o r d e r the p r o s e c u t i n g a t t o r n e y to inquire
w h e t h e r or not a collusion b e t w e e n t h e p a r t i e s exists.
If t h e r e is no collusion, the p r o s e c u t i n g a t t o r n e y shall
i n t e r v e n e for t h e S t a t e in order to t a k e care t h a t t h e
evidence for t h e plaintiff is not fabricated."
a n d , u n d e r t h e said Code, every collusion to o b t a i n a
decree of legal s e p a r a t i o n or of a n n u l m e n t of m a r r i a g e
200
was void and of no effect (Art. 221).

The i n t e r v e n t i o n of t h e prosecuting a t t o r n e y was,
therefore, proper and required where the defendant does
not a n s w e r or, even if he has answered, he does not a p p e a r
personally or by counsel at the trial.
The equivalent provisions of the Family Code are to
this effect:
"Art. 48. In all cases of a n n u l m e n t or declaration
of absolute nullity of m a r r i a g e the court shall order
t h e prosecuting a t t o r n e y or fiscal assigned to it to
a p p e a r on behalf of the S t a t e to take steps to prevent
collusion between t h e p a r t i e s and to take care t h a t
evidence is not fabricated or suppressed.
In the cases referred to in the preceding
p a r a g r a p h , no j u d g m e n t s h a l l be b a s e d u p o n a
stipulation of facts or confession of judgment."
"Art. 60. No decree of legal separation shall be

based upon a stipulation of facts or a confession of
judgment.
In any case, the court shall order the prosecuting
attorney or fiscal assigned to it to take steps to prevent
collusion between t h e parties and to take care t h a t
the evidence is not fabricated or suppressed."
2 5 . A default j u d g m e n t rendered in an a n n u l m e n t
case, even if procedurally erroneous, is nevertheless a
valid j u d g m e n t (De la Cruz vs. Ejercito, L-40895, Nov. 6,
1975).
201
R U L E 10
AMENDED AND SUPPLEMENTAL PLEADINGS
S e c t i o n 1. Amendments in general. — P l e a d i n g s
may be amended by adding or striking out an
allegation or the name of any party, or by
c o r r e c t i n g a m i s t a k e in t h e n a m e of a p a r t y or a
mistaken or inadequate allegation or description
in any other respect, so that the actual merits of
the controversy may speedily be determined,
without regard to technicalities, and in the most
e x p e d i t i o u s a n d i n e x p e n s i v e m a n n e r . (1)
S e c . 7. Filing of amended pleadings. — W h e n a n y

p l e a d i n g is a m e n d e d , a new copy of the entire
pleading, incorporating the amendments, which
shall be indicated by appropriate marks, shall be
filed. (7a)
NOTES
1. A m e n d m e n t s to a pleading should be indicated in

the a m e n d e d pleading, as by underscoring, enclosing t h e m
in q u o t a t i o n m a r k s , p u t t i n g t h e m in capital l e t t e r s , a n d
so forth, as would m a k e t h e m readily evident.
2. The a m e n d e d p l e a d i n g s u p e r s e d e s t h e original
pleading which is deemed w i t h d r a w n and no longer
c o n s t i t u t e s p a r t of t h e record. However, t h e filing of t h e
a m e n d e d p l e a d i n g does not r e t r o a c t to t h e d a t e of t h e
filing of t h e original, h e n c e , t h e s t a t u t e of l i m i t a t i o n s
r u n s u n t i l t h e filing of t h e a m e n d m e n t (Ruymann, et al.
vs. Director of Lands, 34 Phil. 429). But an a m e n d m e n t
which merely s u p p l e m e n t s and amplifies facts originally
alleged in t h e complaint r e l a t e s back to t h e d a t e of the
c o m m e n c e m e n t of t h e action a n d is not b a r r e d by t h e
202
RULE 10 AMENDED AND S E C S . 1, 7
SUPPLEMENTAL PLEADINGS
s t a t u t e of limitations which expired after the service of

the original complaint (Panay Electric Co. vs. CA, et al.,
G.R. No. 59647, Dec. 11, 1982). It is the actual filing in
c o u r t t h a t c o n t r o l s , a n d not t h e d a t e o f t h e f o r m a l
admission of the amended pleading (Republic vs. Marsman
Dev. Co., L-18956, April 27, 1972).
3. Where t h e original complaint s t a t e s a cause of

action but does it imperfectly, and a f t e r w a r d s an
a m e n d e d c o m p l a i n t is filed c o r r e c t i n g t h e defect, t h e
plea of prescription will relate to the time of the filing of
the original complaint (Pangasinan Trans. Co. vs. Phil.
Farming Co., Ltd., 81 Phil. 273). However, such rule
would not apply to t h e p a r t y who was impleaded for the
first time in the amended complaint which was filed after
the period of prescription had already lapsed, hence t h e
amended complaint m u s t be dismissed as to such p a r t y
who w a s t h u s belatedly included in the action (Aetna
Insurance Co. vs. Luzon Stevedoring Corp., L-25266,
Jan. 15, 1975; Seno, et al. vs. Mangubat, et al., L-44339,
Dec. 2, 1987).
4. The rule is t h a t a m e n d m e n t s should be liberally

allowed (Cese vs. GSIS, 109 Phil. 306). This liberality at
the outset of the action decreases as the case moves to its
termination (Salvador vs. Frio, L-25352, May 29, 1970).
However, a m e n d m e n t s to pleadings may be p e r m i t t e d
even for the first time on appeal if, without changing the
cause of action or causing unfair prejudice to the other
p a r t y , t h e p u r p o s e is to (a) correct a defect of p a r t y
plaintiff, as where it is merely to include the husband of
the plaintiff wife (Cuyugan vs. Dizon, 79 Phil. 81); or
(b) s u b s t i t u t e t h e n a m e of t h e r e a l p a r t y in i n t e r e s t
(Palacio vs. Fely Trans. Co., L-15121, Aug. 31, 1962; Chua
Kiong vs. Whitaker, 46 Phil. 578; Alonso vs.Villamor, 16
Phil. 320). T h u s , since a sole proprietorship is a business
organization without juridical personality to sue, an
a m e n d m e n t to s u b s t i t u t e the owner thereof as plaintiff
203
is only a f o r m a l a m e n d m e n t (Juasing Hardware vs.

Mendoza, et al., G.R. No. 55687, July 30, 1982). These
a r e a u t h o r i z e d as formal a m e n d m e n t s u n d e r Sec. 4 of
this Rule.
S e c . 2. Amendments as a matter of right.—A p a r t y

may amend his pleading once as a matter of
right at any time before a responsive p l e a d i n g
is s e r v e d or, in t h e c a s e of a reply, at a n y t i m e
w i t h i n t e n (10) d a y s a f t e r i t i s s e r v e d . (2a)
NOTES
1. A m e n d m e n t for t h e first time is a m a t t e r of r i g h t

before a responsive pleading is filed or, in t h e case of a
reply, within 10 days after it was served. However,
a m e n d m e n t for t h e second or subsequent t i m e m u s t
always be w i t h leave of court even before a responsive
p l e a d i n g is filed or before t h e case is s e t in t h e c a l e n d a r
of t h e court.
Where some but not all the defendants have filed t h e i r
a n s w e r s , t h e plaintiff may a m e n d his complaint, once as
a m a t t e r of right, in respect to t h e claims a s s e r t e d only
a g a i n s t t h e n o n - a n s w e r i n g d e f e n d a n t s , b u t not as to t h e
claims a s s e r t e d a g a i n s t t h e o t h e r d e f e n d a n t s who have
a n s w e r e d (Siasoco, et al., vs. CA, et al., 362 Phil. 525,
Republic vs. Africa, et al, G.R. No. 172315, Aug 28, 2007).
2. Even after a motion to dismiss h a s been filed by

d e f e n d a n t (Paeste vs. Jaurigue, 94 Phil. 179) or s u c h
motion h a s been s u b m i t t e d for decision (Republic vs. Ilao,
L-16667, Jan. 30, 1962), t h e plaintiff can still a m e n d his
c o m p l a i n t as a m a t t e r of right, since a motion to dismiss
is not a responsive p l e a d i n g within t h i s rule. An e r r o r
of t h e court in refusing such a m e n d m e n t is controllable
by m a n d a m u s (Breslin, et al. vs. Luzon Stevedoring Co.,
et al, 84 Phil. 618; Ong Peng vs. Custodio, L-14911,
204
RULE 10 AMENDED AND SEC. 2
Mar. 25, 1961; cf. Dauden-Hernandez vs. De los Angeles

L-27010, April 30, 1969).
3. A m e n d m e n t of the complaint may be allowed even

if an order for its dismissal has been issued as long as the
motion to a m e n d is filed before the dismissal order became
final (Constantino vs. Reyes, L-16853, June 29, 1963). An
amended a n s w e r may also be allowed even after the case
had been set for trial on the merits if the purpose of the
a m e n d m e n t is to submit the real m a t t e r in dispute without
intent to delay t h e action (Paman vs. Diaz et al., G.R.
No. 59582, Aug. 26, 1982; cf. Sec. 3 of this Rule).
4. It h a s also been held t h a t a complaint can still be

amended as a m a t t e r of right before an a n s w e r t h e r e t o
has been filed, even if t h e r e was a pending proceeding in
a higher court for t h e dismissal of t h a t complaint.
U n d e r Sec. 3 of Rule 10, s u b s t a n t i a l a m e n d m e n t s of
the complaint a r e not allowed without leave of court after
an answer has been served, and this is because any
material change in t h e allegations in the complaint could
p r e j u d i c e t h e d e f e n d a n t who h a s a l r e a d y s e t u p his
defenses in h i s a n s w e r . Conversely, no r i g h t s of t h e
d e f e n d a n t will b e v i o l a t e d b y c h a n g e s m a d e i n t h e
complaint if he has yet to file an answer thereto. The
d e f e n d a n t h a s not p r e s e n t e d any defense t h a t can be
altered or affected by an a m e n d m e n t made in accordance
with Sec. 2 of the Rule. In fact, he can thereafter address
the amended allegations by setting up the defenses thereto
in his p r o j e c t e d a n s w e r (Remington Industrial Sales
Corp. vs. CA, et al, G.R. No. 133657, May 29, 2002).
5. The defense of prescription, which was not raised

in a motion to dismiss nor as an affirmative defense in
the original answer, may be validly set up for the first
time in an amended answer. This situation would not be
violative of, because it does not fall under, the general
rule in t h e n Sec. 2 (now, Sec. 1), Rule 9. The effect of the
205
R U L E 10 R E M E D I A L LAW C O M P E N D I U M S E C S . 3-4
filing of the amended answer is t h e w i t h d r a w a l of the

original answer and its substitution by the former. Since
in t h i s case no responsive p l e a d i n g , such as a reply,
h a d been filed by t h e plaintiff a n d t h e case had not
b e e n c a l e n d a r e d for h e a r i n g , t h e d e f e n d a n t h a d t h e
right to amend his answer, p u r s u a n t to Sec. 2, Rule 10,
and in t h e process set up t h e defense of p r e s c r i p t i o n
(Aznar III, et al. vs. Bemad, etc., et al., G.R. No. 81190,
May 9, 1988).
S e c . 3. Amendments by leave of court. — E x c e p t

as provided in the next preceding section,
substantial a m e n d m e n t s may be made only upon
leave of court. But such leave may be refused if
it appears to the court that the motion was made
with intent to delay. Orders of the court upon the
m a t t e r s provided in this section shall be m a d e upon
m o t i o n filed i n c o u r t , a n d a f t e r n o t i c e t o t h e a d v e r s e
p a r t y , a n d a n o p p o r t u n i t y t o b e h e a r d . (3a)
S e c . 4. Formal amendments. — A d e f e c t in t h e
designation of the parties and other clearly clerical
or typographical errors may be summarily corrected
by the c o u r t at any stage of t h e action, at its
initiative or on motion, provided no prejudice is
c a u s e d t h e r e b y t o t h e a d v e r s e p a r t y . (4a)
NOTES
1. Sec. 3 of this Rule amended t h e former rule by

e l i m i n a t i n g t h e p h r a s e "or t h a t t h e cause of action or
defense is s u b s t a n t i a l l y altered." The clear import of
such a m e n d m e n t is t h a t u n d e r the new Rule "the
a m e n d m e n t may (now) s u b s t a n t i a l l y a l t e r t h e cause of
action or defense." This should only be t r u e , however,
when despite a s u b s t a n t i a l change or a l t e r a t i o n in the
cause of action or defense, the a m e n d m e n t s sought to be
made shall serve the higher interests of substantial justice,
206
R U L E 10 AMENDED AND SECS. 3-4
p r e v e n t delay a n d t h u s equally promote t h e l a u d a b l e

objective of t h e Rules which is to secure a "just, speedy
and inexpensive disposition of every action and
p r o c e e d i n g " (see Valenzuela, et al. vs. CA, et al.,
G.R. No. 131175, Aug. 28, 2001). Philippine Ports
Authority vs. William Gothong, etc., Inc., G.R. No. 158401,
Jan. 28, 2008).
2. A m e n d m e n t s are not proper and should be denied:

a. W h e r e t h e c o u r t h a s no j u r i s d i c t i o n over t h e
original complaint and the purpose of the a m e n d m e n t is
to confer j u r i s d i c t i o n on the court by e l i m i n a t i n g
the objectionable portion (Rosario, et al. vs. Carandang,
et al., 96 Phil. 845), or w h e r e t h e c a u s e of a c t i o n
originally pleaded in the complaint was outside the
jurisdiction of the court (Versoza vs. Versoza, L-25609,
Nov. 27, 1968; Campos Rueda Corporation vs. Bautista,
et al., L-18453, Sept. 29, 1982), since t h e court m u s t
first have jurisdiction over the case before it can order
such a m e n d m e n t (Caspar vs. Dorado, L-17884, Nov. 29,
1965);
b. If it would result in delay (Lerma vs. Reyes, etal.,
103 Phil. 1027; Sec. 3 of this Rule);
c. If it would result in a change of the cause of action
or defense or change t h e theory of the case (Torres vs.
Tomacruz, 49 Phil. 914; Sec. 3 of t h i s Rule), or a r e
inconsistent with the allegations in the original
complaint (Castillo, et al. vs. CA, et al., G.R. No. 52008,
Mar. 25, 1988), unless justice and equity w a r r a n t such
a m e n d m e n t which would n e g a t e d e f e n d a n t ' s liability
(R&B Insurance Co., et al. vs. Sauellano, et al., L-45234,
May 8, 1985), or will not r e s u l t in s u b s t a n t i a l injury
to the adverse p a r t y (Marini-Gonzales vs. Lood, et al.,
L-35098, Mar. 16, 1987); and
d. If the plaintiff had no cause of action at the filing
of the original complaint and the purpose of the amend-
207
m e n t is to i n t r o d u c e a s u b s e q u e n t l y - a c c r u e d c a u s e of
action (Surigao Mine Exploration Co. vs. Harris, 68 Phil.
118).
3. To d e t e r m i n e w h e t h e r a different cause of action
is introduced by a m e n d m e n t s to the complaint, w h a t is
ascertained is w h e t h e r the defendant is being required to
a n s w e r for a liability or legal o b l i g a t i o n c o m p l e t e l y
different from t h a t s t a t e d i n t h e o r i g i n a l c o m p l a i n t
(Rubio vs. Mariano, et al, L-30404, Jan. 31, 1973). The
same t e s t may be applied with respect to s u p p l e m e n t a l
pleadings.
4. As earlier stated, a plaintiff may move to amend
his complaint even if the same was dismissed on motion of
the defendant provided the dismissal order is not yet final.
An order denying such motion to amend the complaint is
appealable a n d the r e g l e m e n t a r y period to perfect t h e
appeal r u n s from plaintiffs receipt of t h e order denying
his motion to amend the complaint (Constantino vs. Reyes,
supra).
S e c . 5. Amendment to conform to or authorize

presentation of evidence. — W h e n i s s u e s n o t r a i s e d by
the pleadings are tried with the express or implied
c o n s e n t o f t h e p a r t i e s , t h e y s h a l l b e t r e a t e d i n all
respects as if they had been raised in the pleadings.
Such a m e n d m e n t of the pleadings as may be
necessary to cause them to conform to the evidence
and to raise these issues may be made upon motion
o f a n y p a r t y a t a n y t i m e , e v e n after j u d g m e n t ; but
f a i l u r e t o a m e n d d o e s n o t affect t h e r e s u l t o f t h e
trial o f t h e s e i s s u e s . I f e v i d e n c e i s o b j e c t e d t o a t
the trial on the ground that it is not within the
issues made by the pleadings, the court may allow
the pleadings to be a m e n d e d and shall do so with
liberality if the presentation of the merits of the
action and the e n d s of substantial justice will be
208
subserved thereby. The court may grant a c o n t i n u a n c e

t o e n a b l e t h e a m e n d m e n t t o b e m a d e . (5a)
NOTES
1. This is an instance wherein t h e court acquires

j u r i s d i c t i o n over t h e i s s u e s even if t h e s a m e a r e not
alleged in the original pleadings of the parties, i.e., where
t h e t r i a l of said issues is w i t h t h e e x p r e s s or implied
consent of the p a r t i e s . Also, this rule is premised on the
fact t h a t evidence had been introduced on an issue not
r a i s e d by t h e p l e a d i n g s w i t h o u t any objection by t h e
adverse p a r t y . It, therefore, does not apply when t h e
case w a s d e c i d e d on a s t i p u l a t i o n of facts in w h i c h
case t h e pleadings are not deemed amended to conform to
t h e e v i d e n c e (MWSS us. CA, et al., G.R. No. 54526,
Aug. 25, 1986).
2. One line of cases holds t h a t where the evidence

s u s t a i n s an a w a r d in excess of t h a t claimed in the
complaint, but the plaintiff failed to amend the prayer
of its complaint as to the a m o u n t of damages to conform
to the evidence, the a m o u n t demanded in the complaint
should be the m e a s u r e of damages [Malayan Insurance
Co., I n c . v s . M a n i l a P o r t S e r v i c e , e t a l . , L - 2 3 1 2 8 ,
Sept. 30, 1978; J.M. Tuason & Co. vs. Santiago, 99 Phil.
615]. There have, however, also been cases where the
S u p r e m e Court has held t h a t even w i t h o u t such
a m e n d m e n t to conform to the evidence, the amount proved
at the trial may be validly awarded [Tuazon vs. Bolanos,
91 Phil. 106]. The rule on a m e n d m e n t need not be applied
rigidly, p a r t i c u l a r l y w h e r e no s u r p r i s e or prejudice is
caused the objecting party [Co Tiamco vs. Diaz, 75 Phil.
672] and w h e r e t h e r e is a variance in the defendant's
pleadings and the evidence adduced at the trial, the court
may t r e a t t h e pleading as amended to conform to the
evidence [National Power Corp. vs. CA, et al., L-43814,
April 16, 1982].
209
R U L E 10 R E M E D I A L LAW C O M P E N D I U M SEC. 6
Consequently, the trial court should not be precluded

from a w a r d i n g an a m o u n t higher t h a n t h a t claimed in
the pleadings notwithstanding the absence of the
required a m e n d m e n t , provided t h a t the evidence of such
h i g h e r a m o u n t has been p r e s e n t e d properly, with full
opportunity on the p a r t of the opposing p a r t i e s to support
t h e i r respective contentions and to refute each other's
evidence (Northern Cement Corp. us. IAC, et al., G.R.
No. 68636, Feb. 29, 1988).
3. Where the ejectment case was dismissed by the

inferior court and on appeal the plaintiff filed an amended
c o m p l a i n t to i n c l u d e , as a d d i t i o n a l c a u s e of a c t i o n ,
c o n t r a c t u a l b r e a c h b y t h e d e f e n d a n t w h i c h w a s not
alleged in the original complaint but on which issue the
parties had presented their respective evidence, an
amended complaint may be admitted since the a m e n d m e n t
is to make the pleadings conform to t h e evidence (Dayao
us. Shell Co. of the Phil., Ltd., et al., L-32475, April 30,
1980).
S e c . 6. Supplemental pleadings. — U p o n m o t i o n
of a party the court may, upon reasonable notice
and upon such terms as are just, permit him to serve
a s u p p l e m e n t a l p l e a d i n g s e t t i n g forth t r a n s a c t i o n s ,
occurrences or events which have happened since
the date of the pleading sought to be supplemented.
T h e a d v e r s e p a r t y m a y p l e a d t h e r e t o w i t h i n t e n (10)
days from notice of the order a d m i t t i n g the
s u p p l e m e n t a l p l e a d i n g . (6a)
NOTES
1. Distinctions between amended and s u p p l e m e n t a l

pleadings:
a. Amended pleadings refer to facts existing at the
time of the commencement of t h e action; s u p p l e m e n t a l
210
p l e a d i n g s refer to facts a r i s i n g after t h e filing of t h e

original pleading.
b. An amended pleading results in the w i t h d r a w a l
of the original pleading; a supplemental pleading is merely
in addition to, but does not result in the withdrawal of,
the original pleading.
c. An amended pleading can be made as of right, as
when no responsive pleading has yet been filed; supple-
mental pleadings are always with leave of court.
2. Unlike t h e former provision wherein the court
could r e q u i r e t h e a d v e r s e p a r t y t o p l e a d t o t h e
s u p p l e m e n t a l pleading if it deemed the same advisable,
it is now up to said p a r t y to decide w h e t h e r or not to plead
thereto, provided t h a t if he desires to plead he must observe
the r e g l e m e n t a r y period of 10 days therefor.
3. F o r c o r r e l a t i o n , Sec. 7 of t h i s Rule h a s b e e n
transposed to follow Sec. 1 thereof.
S e c . 8. Effect, of amended pleading. — An a m e n d e d

pleading supersedes the pleading that it amends.
However, admissions in superseded pleadings may
be received in evidence against the pleader; and
claims or defenses alleged therein not incorporated
in the a m e n d e d pleading shall be deemed waived,
(n)
NOTES
1. The first sentence of this section states, in general,

the effect on the original pleading by the subsequent filing
of a pleading amendatory thereof. See, however, Notes 2
and 3 under Sec. 1 of this Rule for the qualifications to
and ramifications of this general rule.
2. Although the supersedure of the original plead-
ing, upon the admission of the amended pleading, amounts
211
to the w i t h d r a w a l of the former, it is nevertheless not

expunged from b u t r e m a i n s in t h e record of t h e case.
Reference can t h e r e b y be readily m a d e t h e r e t o w i t h
r e g a r d t o t h e e f f e c t s o f t h e a m e n d m e n t , t h a t is,
(a) admissions in t h e s u p e r s e d e d pleading can still be
received in evidence against the pleader, and (b) claims
o r d e f e n s e s a l l e g e d t h e r e i n b u t not i n c o r p o r a t e d o r
r e i t e r a t e d in the amended pleading are deemed waived.
The first effect, t h a t is, the admissibility in evidence
of w h a t e v e r admission had been made by t h e p l e a d e r
t h e r e i n is in line with the rulings on judicial admissions.
It will be noted t h a t the admission made in t h a t pleading
was, before it was superseded by amendment, in the n a t u r e
of a j u d i c i a l a d m i s s i o n which does not e v e n r e q u i r e
proof a n d o r d i n a r i l y c a n n o t b e c o n t r a d i c t e d b y t h e
pleader. Despite its being superseded a n d w i t h d r a w n ,
the admissions t h e r e i n are still considered extrajudicial
admissions and may be proved by the party relying
t h e r e o n by formal offer in e v i d e n c e of s u c h o r i g i n a l
pleading. See notes u n d e r Sec. 4 of Rule 129.
212
RULE 11
W H E N TO FILE R E S P O N S I V E P L E A D I N G S
S e c t i o n 1. Answer to the complaint. — T h e

d e f e n d a n t s h a l l file h i s a n s w e r t o t h e c o m p l a i n t
w i t h i n fifteen (15) d a y s after s e r v i c e o f s u m m o n s
u n l e s s a d i f f e r e n t p e r i o d is fixed by t h e c o u r t , ( l a )
S e c . 2. Answer of a defendant foreign private

juridical entity. — W h e r e t h e d e f e n d a n t is a f o r e i g n
private juridical entity and service of summons is
m a d e o n t h e g o v e r n m e n t official d e s i g n a t e d b y law
t o r e c e i v e t h e s a m e , t h e a n s w e r s h a l l b e filed w i t h i n
t h i r t y (30) d a y s after r e c e i p t o f s u m m o n s b y s u c h
e n t i t y . (2a)
NOTES
1. In the case of a nonresident defendant on whom

e x t r a t e r r i t o r i a l service of summons is made, the period to
answer m u s t be at least 60 days (Sec. 15, Rule 14).
2. The g r a n t i n g of additional time to the defendant

w i t h i n w h i c h to file an a n s w e r is a m a t t e r l a r g e l y
addressed to t h e sound discretion of the trial court (Naga
Dev. Corp. vs. CA, et al., L-28173, Sept. 30, 1971). Foreign
authorities are to the effect t h a t while courts can extend
the time for filing of responsive pleadings, they can not
shorten the time to do so (1 Martin 344, citing Aaron vs.
Anderson, 18 Ark. 268, 49 C.J. 200). This seems to be the
i n t e n d m e n t of our rules, as the p r e s e n t Rule provides
for discretion on the p a r t of the court to extend the time
or allow pleadings filed after the reglementary period,
thus —
"Sec. 11. Extension of time to plead. — Upon
motion and on such terms as may be just, the court
213
may e x t e n d t h e t i m e t o p l e a d p r o v i d e d i n t h e s e
Rules.
The court may also, upon like t e r m s , allow an
a n s w e r or other pleading to be filed after the time
fixed by these Rules. (8a)"
It is believed, however, t h a t the discretion of the court
to admit pleadings filed after the reglementary period has
expired does not extend to the steps necessary to perfect
an appeal which must all be done within the reglementary
period, unless prior to its expiration an extension has been
sought and granted on justifiable grounds.
3. A motion for extension of time to file an a n s w e r
may be heard and granted ex parte (Amante us. Sunga,
L-40491, May 28, 1975).
4. An order allowing the filing of a late a n s w e r is
i n t e r l o c u t o r y a n d n o t a p p e a l a b l e (De Ocampo us.
Republic, L-19533, Oct. 31, 1963).
S e c . 3. Answer to amended complaint. — W h e r e

t h e p l a i n t i f f files a n a m e n d e d c o m p l a i n t a s a m a t t e r
of right, the defendant shall a n s w e r the same within
f i f t e e n (15) d a y s a f t e r b e i n g s e r v e d w i t h a c o p y
thereof.
Where its filing is not a matter of right, the
defendant shall answer the amended complaint
w i t h i n t e n (10) d a y s from n o t i c e o f t h e o r d e r
a d m i t t i n g t h e s a m e . A n a n s w e r e a r l i e r filed m a y
serve as the answer to the amended complaint if no
n e w a n s w e r i s filed.
This Rule shall apply to the answer to an
amended counterclaim, amended cross-claim,
a m e n d e d third (fourth, etc.)-party complaint, and
a m e n d e d c o m p l a i n t - i n - i n t e r v e n t i o n . (3a)
214
R U L E 11 WHEN TO FILE SEC. 3
RESPONSIVE PLEADINGS
NOTE
1. This amended section, while adopting the period

provided by the former Rule for the filing of an answer
to an amended complaint, now makes clear t h e date from
which such period shall be reckoned. Thus, if the filing
of an amended complaint is a m a t t e r of right, as where
no a n s w e r has yet been filed to the original complaint,
no motion for leave or court order granting such leave
to file an amended complaint being involved, the 15-day
period to answer is counted from service of the amended
complaint. If t h e filing of the amended complaint is not
a m a t t e r of right, t h e n leave of court is required, hence
the 10-day period to a n s w e r r u n s from notice of the court
order g r a n t i n g the same. This simplified procedure has
been made possible by the new provisions in Rule 15,
t h a t is, Sec. 9 thereof which provides t h a t a motion for
leave to file such pleading shall be accompanied by t h a t
pleading sought to be admitted, hence the defendant has
advance knowledge of t h a t proposed amended complaint.
See notes u n d e r said Sec. 9.
The alternative practice under the old Rule was for
the pleader to file a motion for leave to amend his com-
plaint, a t t a c h i n g t h e r e t o the proposed amended pleading,
with copies of both furnished to the other party. In such
a case, t h e period to file an a n s w e r to t h a t a m e n d e d
complaint commences after receipt of the order of the
c o u r t a l l o w i n g t h e filing of such a m e n d e d p l e a d i n g .
Where, however, a motion for leave to amend was first
filed and t h e n , after t h e order g r a n t i n g the same, the
amended pleading was filed and served on the opposing
party, the reglementary period started to run from service
of such amended pleading. Thus, Sec. 3 was understood
to m e a n t h a t t h e period shall "run from notice of the
order admitting the amended complaint" or the service of
the latter, whichever is later. T h a t procedure has been
215
R U L E 11 R E M E D I A L LAW C O M P E N D I U M S E C S . 4-6, 6
simplified by the aforesaid a m e n d m e n t s , and h a s been

extended in application to the answer to other amended
initiatory pleadings. See Sec. 7 of this Rule with respect
to a supplemental complaint.
S e c . 4. Answer to counterclaim or cross-claim. — A

counterclaim or cross-claim must be answered
w i t h i n t e n (10) d a y s from s e r v i c e . (4)
S e c . 6. Answer to third (fourth, etc.)-party com-

plaint. — T h e t i m e to a n s w e r a t h i r d ( f o u r t h , etc.)-
party complaint shall be governed by the same rule
a s t h e a n s w e r t o t h e c o m p l a i n t . (5a)
NOTES
1. J u s t as provided in Rule 6, the t h i r d - p a r t y

d e f e n d a n t s h a l l file his a n s w e r a l l e g i n g t h e r e i n h i s
defenses and his counterclaims and cross-claims against
the plaintiff, t h e third-party plaintiff or any other party;
and he may a s s e r t such defenses as the t h i r d - p a r t y
plaintiff may have a g a i n s t the plaintiffs claim.
2. The t h i r d - p a r t y defendant is served with

s u m m o n s j u s t like the original defendant, hence he also
h a s 15, 30 or 60 days from service of s u m m o n s , as the
case may be, to file his a n s w e r j u s t like t h e o r i g i n a l
defendant.
S e c . 6. Reply. — A r e p l y m a y be filed w i t h i n t e n
(10) d a y s f r o m s e r v i c e o f t h e p l e a d i n g r e s p o n d e d
to. (6)
NOTES
1. This section uses the word "may" as it is ordinarily

optional for a p a r t y to file a reply since, by his failure to
do so, all t h e new m a t t e r s alleged in t h e a n t e c e d e n t
216
RULE 11 WHEN TO FILE SEC. 6
pleading a r e deemed controverted. However, if he elects

to file a reply, he m u s t observe the above period.
2. Where the last day of the reglementary period
falls on a Sunday or holiday, the pleading may be filed
or t h e r e q u i r e d a c t may be d o n e on t h e s u c c e e d i n g
business day. Although pleadings may also be served
and filed by mail (Sec. 3, Rule 13), it has been held t h a t
even if the B u r e a u of Posts and its branches are open
on a holiday which is the last day for filing a pleading,
such pleading may still be filed on the next day (Galang
us. WCC, et al., L-33928, Mar. 29, 1972).
3. In the computation of the reglementary period,

especially if it is i n t e r r u p t e d by the filing of a pleading,
t h e d a t e w h e n t h e p l e a d i n g is filed a n d t h e d a t e of
receipt of the j u d g m e n t or order thereon are to be
excluded. Thus, when the motion for reconsideration of
a j u d g m e n t is filed on the 15th or last day within which
to perfect the appeal, t h a t day should be excluded and
t h e p a r t y still h a s one day to perfect an a p p e a l . The
filing of said motion and the pendency thereof suspends
t h e r u n n i n g of t h e r e g l e m e n t a r y period, u n l e s s said
motion is pro forma. W h e r e , t h e r e a f t e r , an o r d e r is
received d e n y i n g said motion for reconsideration, the
date of such receipt is also not considered in the com-
putation. Thus, excluding such date of receipt and there
being a balance of one day of the reglementary period,
the appeal can be perfected on the working day following
t h e day of r e c e i p t of t h e d e n i a l o r d e r . T h i s r u l i n g
clarifies and sets aside the doctrines in Federal Films,
Inc. us. Judge of First Instance of Manila [78 Phil. 472]
and Taroma us. Cruz, et al. [68 Phil. 281] (Lloren us. De
Veyra, L-13929, Mar. 28, 1962).
The aforesaid doctrine in Lloren was reiterated and
d e c l a r e d a p p l i c a b l e w h e t h e r t h e motion for reconsi-
deration is filed days before or on the last day of the
reglementary period. Where such motion is filed, say,
217
2 d a y s before t h e end of t h e r e g l e m e n t a r y period of

appeal, the date of filing shall be added to the remaining
days of the period. As already stated, the pendency of
s u c h m o t i o n shall be deducted from, since it suspends, the
r e g l e m e n t a r y p e r i o d u n l e s s i t fails t o s a t i s f y t h e
r e q u i r e m e n t s of Rule 37 (Sec. 2). If t h e m o t i o n is
thereafter denied, the 3 remaining days of the period shall
s t a r t to r u n again on the day after the receipt of the order
d e n y i n g t h e motion (De las Alas, et al. vs. CA, et al.,
L-38006, May 16, 1978; Mayor vs. IAC, et al., G.R.
No. 74410, May 4, 1988).
S e c . 7. Answer to supplemental complaint. — A

supplemental complaint may be answered within
t e n (10) d a y s f r o m n o t i c e o f t h e o r d e r a d m i t t i n g t h e
s a m e , u n l e s s a d i f f e r e n t p e r i o d i s fixed b y t h e c o u r t .
The answer to the complaint shall serve as the
answer to the supplemental complaint if no new or
s u p p l e m e n t a l a n s w e r i s filed, (n)
NOTE
1. This is a new provision which remedies the over-

sight in the old Rule which did not provide for an a n s w e r
to a s u p p l e m e n t a l c o m p l a i n t a l t h o u g h t h e a l l e g a t i o n s
t h e r e i n may very well n e c e s s i t a t e the a p p r o p r i a t e
r e s p o n s e , clarification or denial. Since t h e filing of a
s u p p l e m e n t a l complaint requires leave of court, the
procedure for filing an a n s w e r t h e r e t o is similar to the
case of an a m e n d e d complaint the filing of which is not
a m a t t e r of r i g h t , h e n c e l i k e w i s e r e q u i r i n g l e a v e of
court therefor (see 2nd par., Sec. 3 of the Rule). However,
unlike t h e l a t t e r , t h e court may fix a different period
for a n s w e r i n g the s u p p l e m e n t a l complaint in lieu of t h e
r e g l e m e n t a r y 10-day p e r i o d . T h e difference m a y be
ascribed to t h e fact t h a t in an amended complaint, the
facts s o u g h t to be i n c o r p o r a t e d t h e r e i n w e r e a l r e a d y
218
R U L E 11 W H E N TO FILE SECS. 8-11
known to but were merely omitted by the pleader and, in

all probability, were likewise known to the defending
party. The supplemental complaint, on the other hand,
seeks the introduction of facts or events which occurred
or supervened after the filing of the original complaint,
hence, for lack of knowledge thereof, the defending
party may need a longer period of time to ascertain and
respond to the allegations thereof.
S e c . 8. Existing counterclaim or cross-claim. — A

c o m p u l s o r y c o u n t e r c l a i m or a cross-claim that a
defending party has at the time h e files h i s a n s w e r
s h a l l be c o n t a i n e d t h e r e i n . (8a, R6)
S e c . 9. Counterclaim or cross-claim arising after

answer. — A c o u n t e r c l a i m or a c r o s s - c l a i m w h i c h
e i t h e r m a t u r e d or w a s a c q u i r e d by a p a r t y a f t e r
serving his pleading may, with the permission of
the c o u r t , be p r e s e n t e d as a c o u n t e r c l a i m or a c r o s s -
c l a i m b y s u p p l e m e n t a l p l e a d i n g before j u d g m e n t .
(9, R6)
S e c . 10. Omitted counterclaim or cross-claim.—

When a p l e a d e r fails to s e t up a c o u n t e r c l a i m or a
cross-claim through oversight, inadvertence, or
e x c u s a b l e n e g l e c t , o r w h e n j u s t i c e r e q u i r e s , h e may,
by leave of court, set up the counterclaim or cross-
c l a i m by a m e n d m e n t before j u d g m e n t . (3a, R9)
S e c . 11. Extension of time to plead. — U p o n

motion and on such terms as may be just, the court
may e x t e n d the time to plead provided in t h e s e
Rules.
The c o u r t m a y a l s o , u p o n like t e r m s , a l l o w a n
a n s w e r o r o t h e r p l e a d i n g t o b e filed after t h e t i m e
fixed by t h e s e R u l e s . (7)
219
R U L E 11 R E M E D I A L LAW C O M P E N D I U M SECS. 8-11
NOTES
1. Sec. 11 is c o m m e n t e d on in t h e n o t e s u n d e r
Sec. 2 of this Rule.
2. See t h e discussion in t h e notes u n d e r Secs. 6
and 7 of Rule 6 which point out t h a t an after-acquired
c o u n t e r c l a i m or cross-claim may be set up by filing a
s u p p l e m e n t a l pleading, while an omitted counterclaim or
cross-claim may be raised in an amended pleading
p u r s u a n t to and u n d e r the conditions in Secs. 9 and 10 of
this Rule.
It is also noted t h e r e i n t h a t a counterclaim or cross-
c l a i m n e e d n o t be a n s w e r e d if it is b a s e d on or is
inseparable from the defenses raised by the opposing party,
or merely allege t h e opposite of the facts in t h e complaint.
Also, w h e r e the counterclaim or cross-claim is only for
d a m a g e s or a t t o r n e y ' s fees arising from the filing of the
complaint, it need not be answered. These doctrines also
apply to after-acquired or omitted counterclaims and cross-
claims subsequently allowed by the court to be filed in the
action.
220
R U L E 12
BILL OF PARTICULARS
S e c t i o n 1. When applied for; purpose. — B e f o r e

r e s p o n d i n g to a p l e a d i n g , a p a r t y m a y m o v e for a
m o r e d e f i n i t e s t a t e m e n t or for a bill of p a r t i c u l a r s
of any matter which is not averred with sufficient
definiteness or particularity to enable him properly
to prepare his responsive pleading. If the pleading
is a r e p l y , t h e m o t i o n m u s t be filed w i t h i n t e n (10)
d a y s f r o m s e r v i c e thereof. S u c h m o t i o n s h a l l p o i n t
o u t t h e d e f e c t s c o m p l a i n e d of, t h e p a r a g r a p h s
wherein they are contained, and the details desired,
(la)
NOTES
1. U n d e r this revised Rule, the purpose of a bill of

p a r t i c u l a r s is to enable the defending party to properly
p r e p a r e his responsive pleading. Under the former
formulation, the other purpose was supposedly to
e n a b l e h i m "to p r e p a r e for t r i a l , " b u t t h a t s t a t e m e n t
has been eliminated for being inaccurate. Besides, there
are other and more proper remedies or modes of discovery
whereby a party may c h a r t his course of action for the
prospective trial.
2. W h a t m a y be c o n s i d e r e d as a r a t i o n a l e for
r e q u i r i n g a bill of p a r t i c u l a r s in proper cases is t h a t ,
while p l e a d i n g s s h o u l d be liberally c o n s t r u e d with a
view to s u b s t a n t i a l justice, courts should not be left to
conjecture in the determination of the issues submitted
by the l i t i g a n t s . Where the pleading is vague and
uncertain, courts should not be led to the commission of
error or injustice by exploring in the midst of uncertainty
a n d d i v i n i n g t h e i n t e n t i o n o f t h e p a r t i e s from t h e
221
ambiguities in the pleadings (Go Occo & Co. vs. De la

Costa, et al., 63 Phil. 445).
3. The g r a n t i n g of a motion for a bill of p a r t i c u l a r s
lies w i t h i n t h e s o u n d d i s c r e t i o n of t h e c o u r t a n d its
r u l i n g will not be reversed u n l e s s t h e r e w a s p a l pa bl e
abuse of discretion or it was a clearly erroneous order.
Thus, the S u p r e m e Court refused to d i s t u r b the order of
the t r i a l court dismissing the complaint where plaintiff
refused to submit a bill of p a r t i c u l a r s despite the court's
order therefor, it a p p e a r i n g t h a t the allegations on the
cause of action were in t h e n a t u r e of legal conclusions
w h i c h s h o u l d h a v e b e e n c l a r i f i e d b y u l t i m a t e fa c t s
(Santos vs. Liwag, L-24238, Nov. 28, 1980).
S e c . 2. Action by the court. — U p o n t h e f i l i n g of

the motion, the clerk of court must immediately
bring it to the attention of the court which may
either deny or g r a n t it outright, or allow the parties
t h e o p p o r t u n i t y t o b e h e a r d , (n)
S e c . 3. Compliance with order. — If t h e m o t i o n is

granted, either in whole or in part, the compliance
t h e r e w i t h m u s t b e e f f e c t e d w i t h i n t e n (10) d a y s f r o m
n o t i c e o f t h e o r d e r , u n l e s s a d i f f e r e n t p e r i o d i s fixed
by t h e c o u r t . T h e bill of p a r t i c u l a r s or a m o r e
d e f i n i t e s t a t e m e n t o r d e r e d b y t h e c o u r t m a y b e filed
either in a s e p a r a t e or in an a m e n d e d pleading,
s e r v i n g a c o p y t h e r e o f o n t h e a d v e r s e p a r t y , (n)
S e c . 4. Effect of non-compliance. — If t h e o r d e r is
not obeyed, or in case of insufficient compliance
therewith, the court may order the striking out of
the pleading or the portions thereof to which the
order was directed or make such other order as it
deems just. (l[c]a)
222
RULE 12 BILL OF PARTICULARS SECS. 5-6
NOTES
1. These new or amended provisions spell out the

mechanics involved in the obtention of a bill of p a r t i c u l a r s
and t h e sanctions for non-compliance therewith. Judicial
experience shows t h a t r e s o r t to a motion for a bill of
p a r t i c u l a r s is sometimes actually intended for delay or,
even if not so i n t e n d e d , n o n e t h e l e s s r e s u l t s in delay
since t h e r e g l e m e n t a r y period for filing a r e s p o n s i v e
pleading is suspended and the subsequent exchanges
are likewise set back in the m e a n t i m e .
2. Sec. 3 is a new provision which is i n t e n d e d to

clarify how a bill of p a r t i c u l a r s may be filed, t h a t is,
through e i t h e r a s e p a r a t e or an amended pleading. Thus,
the former provision in Sec. 1(b) of the old Rule t h a t a
bill of p a r t i c u l a r s "shall be g o v e r n e d by t h e r u l e s of
pleading and the original shall be filed with the clerk of
court" h a s been eliminated in the reproduction of t h a t
former provision as Sec. 6 of the p r e s e n t Rule.
Said Sec. 3 further makes it clear t h a t the motion for
a bill of p a r t i c u l a r s may be granted in whole or in p a r t
as not all t h e allegations questioned by the movant are
necessarily so ambiguous as to require clarification.
S e c . 5. Stay of period to file responsive pleading. —

After s e r v i c e o f t h e b i l l o f p a r t i c u l a r s o r o f a m o r e
definite pleading, or after notice of denial of his
m o t i o n , t h e m o v i n g p a r t y m a y file h i s r e s p o n s i v e
pleading within the period to which he was entitled
at t h e t i m e of filing his motion, w h i c h shall not be
l e s s t h a n five (5) d a y s i n a n y e v e n t . ( l [ b ] a )
S e c . 6. Bill a part of pleading. — A b i l l of

p a r t i c u l a r s b e c o m e s p a r t o f t h e p l e a d i n g for w h i c h
it is i n t e n d e d . (l[a]a)
223
NOTES
1. As understood u n d e r Sec. 1 of this Rule, a motion

for a b i l l of p a r t i c u l a r s m u s t be filed w i t h i n t h e
r e g l e m e n t a r y p e r i o d for t h e filing of a r e s p o n s i v e
p l e a d i n g to t h e p l e a d i n g s o u g h t to be clarified. T h i s
contemplates pleadings which are required by the Rules
to be a n s w e r e d u n d e r pain of procedural sanctions,
s u c h as default or implied a d m i s s i o n of t h e facts not
responded to. A special provision regarding a vague reply
is included in Sec. 1, t h a t is, t h a t a motion for a bill of
p a r t i c u l a r s directed to a reply m u s t be filed within 10
days, since a responsive pleading is not required for a
reply as, in fact, the filing of the reply itself is optional
or permissive (see Sec. 6, Rule 11 and notes thereon).
2. This specification of a reply took t h e place of the

former provision which merely provided for t h a t 10-day
period if t h e p l e a d i n g s o u g h t to be clarified is one to
which "no r e s p o n s i v e p l e a d i n g is p e r m i t t e d by t h e s e
rules." T h a t is in itself correct but may be susceptible of
m i s u n d e r s t a n d i n g since t h e r e are other pleadings evolved
and sanctioned by practice as responsive pleadings,
which are of American vintage but not expressly provided
for in our Rules.
T h u s , after the reply, t h e r e can be a rejoinder with
a sur-rejoinder and t h e n a r e b u t t e r with a s u r - r e b u t t e r .
If t h e s e s u b s e q u e n t pleadings are allowed by the court,
as responsive pleadings which a r e not r e q u i r e d b u t at
least authorized, t h e n it would be logical for it to fix a
period for t h e filing of a motion for a bill of p a r t i c u l a r s
whenever the s a m e is necessary to make more definite
the allegations in said pleadings.
3. Judicial experience, however, reveals t h a t resort

to t h e filing of rejoinders a n d s u r - r e j o i n d e r s or o t h e r
s u b s e q u e n t pleadings were often resorted to for dilatory
purposes, with the parties intentionally leaving incomplete
224
RULE 12 BILL OF PARTICULARS SECS. 5-6
their a n t e c e d e n t pleadings in order to justify the g r a n t of

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

of p a r t i c u l a r s in criminal cases, see Sec. 9, Rule 116 and
the notes thereon.
225
RULE 13
FILING A N D SERVICE OF P L E A D I N G S ,
J U D G M E N T S A N D OTHER P A P E R S
S e c t i o n 1. Coverage. — T h i s R u l e s h a l l g o v e r n
t h e f i l i n g o f all pleadings and other papers, as well
as the service t h e r e o f , e x c e p t t h o s e for w h i c h a
different mode o f s e r v i c e i s p r e s c r i b e d , (n)
S e c . 2. Filing and service, defined. — F i l i n g is t h e

act of presenting the pleading or other paper to the
clerk of court.
S e r v i c e is t h e a c t of p r o v i d i n g a p a r t y w i t h a
copy of the pleading or paper concerned. If any
party has appeared by counsel, service upon h i m
shall be made upon his counsel or one of them,
unless service upon the party himself is ordered by
t h e c o u r t . W h e r e o n e c o u n s e l a p p e a r s for s e v e r a l
parties, he shall only be entitled to one copy of any
p a p e r s e r v e d u p o n h i m b y t h e o p p o s i t e s i d e . (2a)
NOTES
1. It is t h e d u t y of counsel to a d o p t a n d strictly
m a i n t a i n a system t h a t efficiently t a k e s into account all
court notices s e n t to him. His failure to do so c a n n o t
excuse him from the consequences of his non-receipt of
court notices (Babala vs. CA, et al., L-23065, Feb. 16,
1970; Republic vs. Arro, et al., L-48241, June 11, 1987;
Antonio, et al. vs. CA, et al., G.R. No. 77656, Aug. 31,
1987). An a t t o r n e y of record m u s t notify t h e court of his
change of a d d r e s s . The fact t h a t counsel used a different
a d d r e s s in later pleadings does not constitute the notice
r e q u i r e d for i n d i c a t i n g his c h a n g e of a d d r e s s (Phil.
Suburban Dev. Corp. vs. CA, et al., L-33448, Sept. 17,
1980). See also Sec. 3, Rule 7 and t h e notes t h e r e u n d e r .
226
RULE 13 FILING AND SERVICE OF PLEADINGS, SECS 1-2
JUDGMENTS AND OTHER PAPERS
2. Notice given to a p a r t y who is duly r e p r e s e n t e d

by counsel is a nullity (Inocando vs. Inocando, 110 Phil.
266; Elli vs. Ditan, L-17444, June 30, 1962; Republic vs.
Arro, et al., supra; Antonio, et al. vs. CA, et al., supra),
unless service thereof on t h e party himself was ordered
by the court or t h e technical defect was waived (National
Lumber & Hardware Co. vs. Manaois, 106 Phil. 1098;
Jalover vs. Ytoriaga, L-35989, Oct. 29, 1977; De Leon vs.
CA, et al, G.R. No. 138884, June 6, 2002).
3. Where notice of t h e decision was served on the

receiving station at t h e ground floor of the defendant's
company building, and received much later at the office
of its legal counsel on t h e n i n t h floor of said building,
which was his a d d r e s s of record, service of said decision
takes effect from said later receipt at t h e aforesaid office
of i t s l e g a l c o u n s e l (PLDT vs. NLRC, et al, G.R.
No. 60050, Mar. 26, 1984). However, where counsel who
had t h e i r office on t h e t h i r d floor of t h e building had
v i r t u a l l y a c q u i e s c e d to service of p l e a d i n g s on t h e m
t h r o u g h a corporation on the ground floor of the building
by not objecting to previous service t h r o u g h the latter,
s u b s e q u e n t service in such m a n n e r is valid (PCIB vs.
Ortiz, et al., L-49223, May 29, 1987).
4. Where a p a r t y is represented by more t h a n one
counsel of record, service of notice on any of the l a t t e r is
sufficient (Damasco vs. Arrieta, L-18879, Jan. 31, 1963).
Service on counsel of record is notice to the party unless
the irresponsibility of such counsel denies the p a r t y of
his day in c o u r t (PHHC vs. Tiongco, et al, L-18891,
Nov. 28, 1964).
5. In c r i m i n a l cases, notice to t h e prosecution is
made on the fiscal and the private prosecutor is deemed
constructively notified thereof (Buro vs. Montesa, et al,
87 Phil 245). The court, of course, could also cause a
copy thereof to be served on said private prosecutor.
227
S e c . 3. Manner of filing. — T h e f i l i n g of p l e a d -
ings, appearances, motions, notices, orders,
j u d g m e n t s a n d all o t h e r p a p e r s s h a l l b e m a d e b y
p r e s e n t i n g the original copies thereof, plainly
indicated as such, personally to the clerk of court
or by s e n d i n g t h e m by r e g i s t e r e d m a i l . In t h e first
c a s e , t h e c l e r k o f c o u r t shall e n d o r s e o n t h e p l e a d i n g
t h e d a t e a n d h o u r o f filing. I n t h e s e c o n d c a s e , t h e
date of the mailing of motions, pleadings, or any
other papers or payments or deposits, as s h o w n by
t h e p o s t office s t a m p o n t h e e n v e l o p e o r t h e r e g i s t r y
receipt, shall be considered as the date of their
filing, p a y m e n t , o r d e p o s i t i n c o u r t . T h e e n v e l o p e
shall be attached to the record of the case, (la)
NOTES
1. The clerk shall keep a general docket, each page

of which shall be n u m b e r e d and p r e p a r e d for receiving
all t h e e n t r i e s in a single case and shall e n t e r t h e r e i n all
cases, n u m b e r e d consecutively in the order in which they
were received and, u n d e r t h e heading of each case and
a complete title thereof, t h e date of each p a p e r filed or
issued, of each order or j u d g m e n t e n t e r e d , and of each
o t h e r step t a k e n in t h e case, so t h a t by reference to a
single page the history of the case may be seen (Sec. 8,
Rule 136).
2. U n d e r t h i s s e c t i o n , filing by m a i l s h o u l d be
t h r o u g h the registry service which is made by deposit of
t h e p l e a d i n g in t h e post office, a n d not t h r o u g h o t h e r
m e a n s of t r a n s m i s s i o n . T h u s , the date of delivery of the
p l e a d i n g s to a p r i v a t e l e t t e r - f o r w a r d i n g agency or
p r i v a t e c a r r i e r , e v e n if l i c e n s e d to act as s u c h w i t h
r e s p e c t to o t h e r a r t i c l e s , is not a recognized mode of
filing p l e a d i n g s which can only be done t h r o u g h t h e
Philippine G o v e r n m e n t Post Office or its postal agencies.
If a p r i v a t e carrier is availed of by the party, the d a t e of
228
RULE 13 FILING AND SERVICE OF PLEADINGS, SECS 4-5 6
actual receipt by the court of such pleading, and not the

date of delivery to the carrier, is deemed to be the date of
the filing of that pleading (Benguet Electric Cooperative,
Inc. vs. NLRC, et al., G.R. No. 89070, May 18, 1992;
Industrial Timber Corp. vs. NLRC, et al., G.R. No. 111985
June 30, 1994).
S e c . 4. Papers required to be filed and served. —

Every judgment, resolution, order, pleading
subsequent to the complaint, written motion, notice,
a p p e a r a n c e , d e m a n d , offer o f j u d g m e n t o r s i m i l a r
p a p e r s s h a l l b e filed w i t h t h e c o u r t s a n d s e r v e d
u p o n t h e p a r t i e s a f f e c t e d . (2a)
S e c . 5. Modes of service. — S e r v i c e of p l e a d i n g s ,
motions, notices, orders, judgments and other
p a p e r s s h a l l b e m a d e e i t h e r p e r s o n a l l y o r b y mail.
(3a)
NOTE
1. Aside from personal service or by mail, service of

pleadings may also be effected by substituted service
(Sec. 8) and judgments, final orders or resolutions may
be served by publication (Sec. 9), but the last mode is
proper only where the summons on the defendant had
also been served by publication.
S e c . 6. Personal service. — S e r v i c e of t h e p a p e r s
m a y be m a d e by d e l i v e r i n g p e r s o n a l l y a c o p y to t h e
p a r t y or h i s c o u n s e l , or by l e a v i n g it in h i s office
with his clerk or with a person having charge
thereof. If no p e r s o n is f o u n d in h i s office, or h i s
office i s n o t k n o w n , o r h e h a s n o office, t h e n b y
leaving the copy, between the hours of eight in
t h e m o r n i n g a n d six i n t h e e v e n i n g , a t t h e party's
or c o u n s e l ' s r e s i d e n c e , if k n o w n , w i t h a p e r s o n of
229
R U L E 13 R E M E D I A L LAW C O M P E N D I U M SEC 7
sufficient age and discretion then residing therein.

(4a)
NOTE
1. This section has been a m e n d e d to include the

situation where counsel has no office, and not only where
his office is u n k n o w n or t h e r e is no person in c h a r g e
thereof. U n d e r such circumstances, service may be made
not only at the residence of the party he r e p r e s e n t s but,
now, also at counsel's residence, it being a s s u m e d t h a t
his residence is also used by him as his office. In any of
said cases, this section now requires t h a t if not served
on either the party or counsel personally therein,
service should be made not only on a person of sufficient
discretion but likewise of sufficient age a n d who m u s t
further be actually residing therein. The additional age
r e q u i r e m e n t is intended to make it easier to a s c e r t a i n
w h e t h e r t h e person to whom the pleading was e n t r u s t e d
is one with sufficient discretion. Also, t h e r e q u i r e m e n t
t h a t he should be a r e s i d e n t t h e r e i n is to obviate t h e
possibility or t h e p r e t e x t t h a t service was made only on a
visitor or any person who happened to be in the residence
for a t r a n s i e n t or t e m p o r a r y purpose.
S e c . 7. Service by mail. — S e r v i c e by r e g i s t e r e d
mail shall be made by depositing the copy in the
p o s t office, i n a s e a l e d e n v e l o p e , p l a i n l y a d d r e s s e d
t o t h e p a r t y o r h i s c o u n s e l a t h i s office, i f k n o w n ,
otherwise at his residence, if known, with postage
fully pre-paid, and with i n s t r u c t i o n s to the
p o s t m a s t e r t o r e t u r n t h e m a i l t o t h e s e n d e r after
t e n (10) d a y s i f u n d e l i v e r e d . I f n o r e g i s t r y s e r v i c e i s
available in the locality of either the sender or the
a d d r e s s e e , s e r v i c e m a y b e d o n e b y o r d i n a r y mail.
(5a) (As amended by Resolution of the Supreme Court,
dated Feb. 17, 1998)
230
RULE 13 FILING A N D SERVICE OF PLEADINGS, SECS 8-9
NOTE
1. See Note 2 under Sec. 6, Rule 11.
S e c . 8. Substituted service. — If s e r v i c e of
pleadings, motions, notices, resolutions, orders and
other papers cannot be made under the two
p r e c e d i n g s e c t i o n s , t h e office a n d p l a c e o f r e s i d e n c e
of the party or his counsel being unknown, service
may be made by delivering the copy to the clerk of
court, with proof of failure of both personal service
and service by mail. The service is complete at the
t i m e o f s u c h d e l i v e r y . (6a)
NOTES
1. Where the counsel of record has not withdrawn

as such, service of the judgment on his wife at their
residence is valid personal service (Cubar vs. Mendoza,
G.R. No. 55035, Feb. 23, 1983).
2. "Substituted service" as applied to pleadings in

the above section has a different meaning from "substi-
tuted service" as applied to summons, Rule 14 providing
as follows:
"Sec. 7. Substituted service. — If, for justifiable
c a u s e s , t h e d e f e n d a n t c a n n o t be s e r v e d w i t h i n a
reasonable time as provided in the preceding section,
service may be effected (a) by leaving copies of the
summons at the defendant's dwelling house or residence
with some person of suitable age and discretion then
r e s i d i n g t h e r e i n , or (b) by l e a v i n g t h e c o p i e s at
defendant's office or regular place of business with some
competent person in charge thereof. (8a)"
S e c . 9. Service of judgments, final orders or resolu-

tions. — J u d g m e n t s , final o r d e r s or r e s o l u t i o n s s h a l l
231
be served either personally or by registered mail.

W h e n a p a r t y s u m m o n e d b y p u b l i c a t i o n h a s failed
t o a p p e a r i n t h e a c t i o n , j u d g m e n t s , final o r d e r s o r
resolutions against him shall be served upon h i m
also by publication at the expense of the prevailing
p a r t y . (7a)
NOTES
1. A judgment or final order served by ordinary mail

does not become executory since the service is fatally
defective (Vda. de Espiritu vs. CFI of Cavite, et al.,
L-30486, Oct. 31, 1972). P e r s o n a l s e r v i c e of s u c h
judgment upon the party, instead of his counsel of record,
is not permitted. Also, where a copy of the decision is
served on a person who was neither a clerk nor one in
charge of the attorney's office, such service is invalid and
the decision did not thereafter become executory (Tuazon,
et al. vs. Molina, et al., G.R. No. 55697, Feb. 26, 1981).
2. The mere notation in the rollo that a copy of the

resolution was sent to counsel, absent a showing of his
receipt thereof, does not constitute proof of service (Soria
vs. CA, L-36378, April 7, 1976).
3. For constructive service by registered mail, there
must be conclusive proof that a first notice by the post-
master to the addressee was received. The presumption
that official duty has been performed does not apply
(ITT Philippines, Inc. vs. CA, et al., L-30810, Oct. 29,
1975; Barrameda vs. Castillo, L-27211, July 6, 1977;
Elane vs. CA, et al., G.R. No. 80638, April 26, 1989). If,
however, the postmaster certifies that such notice was
sent, the presumption arises and overrides the contrary
claim of the addressee (Ferraren vs. Santos, L-41323,
April 27, 1980). Where the delivery of the first notice
was not made because the "addressee was unlocated,"
there is no s u b s t i t u t e d service (Arines vs. Cuachin,
L-30014, July 31, 1978). But w h e r e a copy of the
232
RULE IS FILING AND SERVICE OF PLEADINGS
J U D G M E N T S AND OTHER PAPERS
decision w a s s e n t to counsel at his address of record

but the s a m e w a s not received because he moved to
another address without informing the court thereof,
such omission or neglect will not stay the finality of the
decision (Magno, et al. vs. CA, et al., G.R. No. 58781
July 31, 1987).
4. Judgments, final orders or final resolutions can

be served only under the three modes authorized in this
section, t h a t is, personally, by registered mail or by
p u b l i c a t i o n . T h e y c a n n o t be s e r v e d by s u b s t i t u t e d
service. With respect to service by publication, the rule
is that resort thereto is proper only where summons was
likewise served by publication, and this can result in
practical problems especially in the appellate courts. If,
for i n s t a n c e , it h a s b e e n a s c e r t a i n e d t h a t a party's
counsel is dead or has permanently left the country and
withdrawn from the case without a substitute counsel
having entered his appearance, and the whereabouts of
the party represented by him can neither be ascertained
nor the fact thereof obtained from the opposing party,
and s u m m o n s in t h a t case had not b e e n s e r v e d by
publication, then service of the judgment by publication
is not authorized and would not be valid. As just stated,
substituted service can not be availed of. The logical
solution would be to authorize the trial court to effect
service of the judgment by publication, otherwise entry
and execution of that judgment would be void.
5. What is authorized or required to be served by

publication under the third mode in this section is the
judgment, final order or resolution. To avoid absurd or
impractical results, only the dispositive portion or the
fallo should be required to be published, and not the
entire text of the decision or resolution which may be
v o l u m i n o u s and w i l l e n t a i l s u b s t a n t i a l publication
expenses. In other words, the term "judgment" must be
that contemplated in Rule 36. The prevailing party
233
may, for reasons of his own, cause the publication of

the whole decision since after all the same shall be at
his expense.
S e c . 10. Completeness of service. — P e r s o n a l

service is complete upon actual delivery. Service
by ordinary mail is complete upon the expiration
o f t e n (10) d a y s a f t e r m a i l i n g , u n l e s s t h e c o u r t
otherwise provides. Service by registered mail is
complete upon actual receipt by the addressee, or
a f t e r five (5) d a y s f r o m t h e d a t e h e r e c e i v e d t h e
first n o t i c e of t h e p o s t m a s t e r , w h i c h e v e r date is
e a r l i e r . (8a)
NOTES
1. This section, as amended, now provides for 10

days, instead of the former 5 days, for completeness of
service by ordinary mail. For service by registered mail,
the completeness thereof is now reckoned from the date
of actual receipt of the first notice of the postmaster,
unless the registered mail was received prior thereto.
2. The rule on completeness of service by registered

mail only provides for a disputable presumption and
may, therefore, be rebutted (Cabuang vs. Bello, 105 Phil.
1135). For the rule to apply, service must have been
made on the counsel de parte (Fojas vs. Navarro, L-26365,
April 30, 1970) and if it was sent to his address of record
and he fails to receive it for causes imputable to him,
the service becomes final and it is not necessary to effect
further service upon the party he represents (Magno,
et al. vs. CA, et al., supra).
3. Service of notice by registered mail cannot be

avoided by counsel's refusal to accept delivery after
notification thereof, and notice is d e e m e d complete
regardless of such refusal to accept (Isaac vs. Mendoza,
234
RULE 13 FILING AND SERVICE OF PLEADINGS SECS 11-12
89 Phil. 279).
4. When the post office certifies to the delivery of

registered mail, such certification should include data as
t o w h e n , how and t o w h o m d e l i v e r y w a s m a d e
(Hernandez, et al. vs. Navarro, et al, L-28296, Nov 24
1972).
5. For failure of petitioners to claim a copy of the

resolution denying due course to their petition within
5 days from notice, service became effective after the
five-day period and the finality of said resolution is
reckoned therefrom, pursuant to Sec. 8 (now, Sec. 10),
Rule 18 which is applicable to said resolution of the
appellate court (Aportadera, et al. vs. CA, et al, L-41358,
Mar. 16, 1988).
Sec. 11. Priorities in modes of service and filing.—

Whenever practicable, the service and filing of
pleadings and other papers shall be done personally.
Except with respect to papers emanating from the
court, a resort to other m o d e s must be accompanied
b y a w r i t t e n e x p l a n a t i o n w h y t h e s e r v i c e o r filing
was not done personally. A violation of this rule
m a y b e c a u s e t o c o n s i d e r t h e p a p e r a s n o t filed, (n)
S e c . 12. Proof of filing. — T h e filing of a p l e a d i n g

or paper shall be proved by its e x i s t e n c e in the
record of t h e case. If it is not in the record, but is
c l a i m e d to h a v e b e e n filed personally, the filing
shall be proved by the written or stamped
a c k n o w l e d g m e n t of its filing by the clerk of court
on a c o p y of t h e s a m e ; if filed by r e g i s t e r e d m a i l , by
the registry receipt and by the affidavit of the
p e r s o n w h o d i d t h e m a i l i n g , c o n t a i n i n g a full
statement of the date and place of depositing the
mail in t h e p o s t office in a s e a l e d e n v e l o p e a d d r e s s e d
t o t h e c o u r t , w i t h p o s t a g e fully pre-paid, a n d w i t h
236
instructions to the postmaster to return the mail

t o t h e s e n d e r after t e n (10) d a y s i f n o t d e l i v e r e d , (n)
NOTES
1. Sec. 11, which is a new provision, fills a long

s t a n d i n g need to curb t h e practice of delaying the receipt
of a pleading by a p a r t y t h r o u g h t h e simple expedient
of s e r v i n g t h e s a m e by m a i l . A s i m p l e a n d common
e x a m p l e w o u l d be in t h e m a t t e r of m o t i o n s w i t h a
r e q u e s t e d date of hearing, and a copy whereof is mailed
with t h e i n t e n t to have t h e same received by t h e adverse
p a r t y after t h e h e a r i n g thereof. E x t r e m e s i t u a t i o n s even
obtain in Metro Manila wherein t h e copy of t h e motion is
mailed in a post office in some other component city or
municipality of t h e metropolitan area, although t h e law
firms r e p r e s e n t i n g t h e p a r t i e s a r e j u s t across t h e s t r e e t
from each o t h e r in t h e same city or, worse, a r e in t h e same
building. This section may be considered, not only as
providing a procedural sanction for such duplicity, b u t as
also laying a basis for a d m i n i s t r a t i v e disciplinary action
for professional malpractice. See also related provisions,
geared toward t h e s a m e objective, in Sec. 3, Rule 7 and
Sec. 4, Rule 15.
2. W h e n t h e service is not made personally, t h e r e

m u s t be a w r i t t e n e x p l a n a t i o n t h e r e f o r , e v e n if s u c h
e x p l a n a t i o n is by its n a t u r e a c c e p t a b l e a n d m a n i f e s t .
This r e q u i r e m e n t is intended to emphasize t h a t p e r s o n a l
service is t h e rule, while t h e o t h e r modes of service are
t h e e x c e p t i o n s (Zulueta vs. Asia Brewery, Inc., G.R.
No. 138137, Mar. 8, 2001). W h e r e no e x p l a n a t i o n is
offered to justify t h e service of pleadings by o t h e r modes,
the discretionary power of the court to expunge the
pleading becomes m a n d a t o r y (United Pulp and Paper Co.,
Inc. vs. United Pulp and Paper Chapter, etc., G.R. No.
141117, Mar. 25, 2004).
236
RULE 13 FILING A N D SERVICE OF PLEADINGS, SEC. 13
3. The fact t h a t an affidavit of service accompanied

the petition is not s u b s t a n t i a l compliance with the
r e q u i r e m e n t in Sec. 11. An affidavit of service is required
merely as proof t h a t service h a s been made to t h e other
p a r t i e s in t h e case. It does not, however, explain why
a l t e r n a t i v e modes of service other t h a n personal service
were resorted to (MC Engineering, Inc. vs. NLRC, et al.,
G.R. No. 142314, June 28, 2001).
4. This Rule, and its predecessor, had always

provided for proof of service of pleadings, b u t had not
m a d e an e q u i v a l e n t p r o v i s i o n for proof of t h e filing
thereof. Yet, similar controversies also arise r e g a r d i n g
t h e validity, t i m e l i n e s s a n d sufficiency of t h e filing of
the pleading j u s t like t h e m a t t e r of the service thereof,
hence t h e s e complementary provisions of Sec. 12.
S e c . 13. Proof of service. — P r o o f of p e r s o n a l

service shall consist of a written admission of the
p a r t y s e r v e d , o r t h e official r e t u r n o f t h e s e r v e r , o r
t h e a f f i d a v i t of t h e p a r t y s e r v i n g , c o n t a i n i n g a full
statement of the date, place and manner of service.
If the service is by ordinary mail, proof thereof shall
consist of an affidavit of the person mailing of facts
s h o w i n g c o m p l i a n c e w i t h section 7 of this Rule. If
service is m a d e by registered mail, proof shall be
made by such affidavit and the registry receipt
i s s u e d b y t h e m a i l i n g office. T h e r e g i s t r y r e t u r n
card s h a l l b e filed i m m e d i a t e l y u p o n its r e c e i p t b y
the sender, or in lieu thereof the unclaimed letter
together with the certified or sworn copy of the
notice given by the postmaster to the addressee.
(10a)
NOTE
1. The provision of this section on proof of service

of pleadings by registered mail is also applicable to the
237
m a t t e r of proving t h a t a copy of t h e s u m m o n s was s e n t

by r e g i s t e r e d m a i l to a d e f e n d a n t w h e r e t h e s a m e is
required as an integral complement in t h e service of such
s u m m o n s by publication. See Secs. 7 a n d 15, Rule 14,
and the comments t h e r e u n d e r .
S e c . 14. Notice of lis pendens. — In an a c t i o n

affecting the title or the right of p o s s e s s i o n of real
property, the plaintiff and the defendant, w h e n
affirmative relief is claimed in his answer, may
r e c o r d i n t h e office o f t h e r e g i s t r y o f d e e d s o f t h e
province in w h i c h the property is situated a notice
of the pendency of the action. Said notice shall
contain the names of the parties and the object of
the action or defense, and a description of the
property in that province affected thereby. Only
f r o m t h e t i m e o f f i l i n g s u c h n o t i c e for r e c o r d s h a l l
a purchaser, or e n c u m b r a n c e r of the property
affected thereby, be deemed to have constructive
notice of the pendency of the action, and only of its
pendency against the parties designated by their
real names.
The notice of lis pendens hereinabove
mentioned may be cancelled only upon order of the
c o u r t , a f t e r p r o p e r s h o w i n g t h a t t h e n o t i c e i s for
the purpose of molesting the adverse party, or
that it is not necessary to protect the rights of
t h e p a r t y w h o c a u s e d i t t o b e r e c o r d e d . (24a, R14)
NOTES
1. A notice of lis pendens, u n d e r t h e circumstances

and the conditions provided in this section, may be recorded
at t h e instance of t h e i n t e r e s t e d p a r t y at any time d u r i n g
t h e p e n d e n c y of t h e action a n d not n e c e s s a r i l y at t h e
time of t h e filing of t h e complaint or t h e a n s w e r of the
p a r t y concerned.
238
RULE 13 FILING A N D SERVICE OF PLEADINGS, SEC. 14
2. A notice of lis pendens is intended to protect t h e

real rights of t h e p a r t y who caused the registration thereof
(Natano vs. Esteban, L-22034, Oct. 28, 1966). It
s e r v e s as a w a r n i n g to prospective e n c u m b r a n c e r s or
p u r c h a s e r s t h a t t h e y should keep t h e i r h a n d s off t h e
property unless they wish to gamble on the result of t h e
litigation involving t h e s a m e (Bisaya Land Trans. Co.,
Inc. vs. Cuenco, L-18173, April 22, 1968; Laroza, et al.
vs. Guia, L-45252, Jan. 31, 1985; cf. Tanchoco, et al. vs.
Aquino, et al., L-30670, Sept. 15, 1987). The p a r t y who
h a d t h e notice a n n o t a t e d a n d who won t h e l i t i g a t i o n
over t h e p r o p e r t y h a s t h e b e t t e r r i g h t a s a g a i n s t one
who b o u g h t it w i t h s u c h a n n o t a t i o n (Heirs of Maria
Marasigan vs. IAC, et al., G.R. No. 69303, July 23, 1987).
3. W h e r e t h e notice of lis pendens is limited to a

one-half undivided i n t e r e s t in the property in litigation,
t h e o w n e r o f t h e o t h e r half h a s t h e r i g h t t o sell his
u n d i v i d e d pro indiviso s h a r e (Mercado vs. Viardo,
L-14127, Aug. 21, 1962).
4. A notice of lis pendens cannot be ordered to be

cancelled on an ex parte motion. There should be notice
to t h e p a r t y who caused such notice to be recorded so
t h a t h e m a y b e h e a r d t o show t o t h e c o u r t t h a t t h e
notice of lis pendens is necessary to protect his r i g h t s
a n d is not for t h e p u r p o s e of m o l e s t i n g t h e a d v e r s e
p a r t y (Punongbayan vs. Pineda, et al., G.R. No. 58193,
Aug. 30, 1984). A n o t i c e of lis pendens c a n n o t be
ordered to be cancelled upon t h e mere filing of a bond by
the p a r t y on whose title t h e notice is annotated, as this
s e c t i o n p r o v i d e s for only t w o i n s t a n c e s w h e n s u c h
cancellation may be authorized (Tan, et al. vs. Lantin,
et al., L-28526, July 7, 1986).
5. However, u n d e r exceptional circumstances, the
c o u r t c a n o r d e r t h e c a n c e l l a t i o n of t h e notice of lis
pendens e s p e c i a l l y w h e r e s u c h c i r c u m s t a n c e s a r e
imputable to the party who caused the annotation of said
239
notice, as where t h e litigation was unduly prolonged to

the prejudice of the defendant because of several
continuances procured by the plaintiff (Mun. ofParahaque
vs. Rovira, 55 Phil. 1000). Also, w h e r e t h e case which is
t h e basis for t h e lis pendens notation w a s dismissed for
non-prosequitur on t h e p a r t of t h e plaintiff (Lazaro vs.
Mariana, 59 Phil. 627), or j u d g m e n t w a s r e n d e r e d a g a i n s t
the p a r t y who caused the recording of said notice
(Capitol Subdivision, Inc., et al. vs. Montelibano et al.,
109 Phil. 546), said notice is deemed ipso facto cancelled.
6. Lis pendens is a L a t i n t e r m which literally m e a n s

a p e n d i n g suit or litigation, while a notice of lis pendens
is an a n n o u n c e m e n t to t h e whole world t h a t a p a r t i c u l a r
real p r o p e r t y is in litigation, serving as a w a r n i n g t h a t
one w h o a c q u i r e s a n i n t e r e s t over t h e s a i d p r o p e r t y
does so at his own risk. It is a rule founded upon r e a s o n s
of public policy a n d necessity.
As such, a notice of lis pendens c a n n o t conceivably
be t h e lien or e n c u m b r a n c e c o n t e m p l a t e d by law. A lien
is an existing b u r d e n or charge on t h e p r o p e r t y , while
a notice of lis pendens is only a w a r n i n g t h a t a claim or
possible charge on t h e p r o p e r t y is p e n d i n g d e t e r m i n a t i o n
by t h e court. Not all claims a g a i n s t a p r o p e r t y can be
considered as liens within the contemplation of law
(People vs. RTC of Manila, etc., et al., G.R. No. 81541,
Oct. 4, 1989).
7. A notice of lis pendens is proper only w h e r e t h e r e

is an action or proceeding in court which affects t h e title
to or p o s s e s s i o n of r e a l p r o p e r t y (Dino vs. CA, et al.,
G.R. No. 95921, Sept. 2, 1992). It is e s s e n t i a l t h a t t h e
property be directly affected, as where the relief sought in
t h e action i n c l u d e s t h e recovery of p o s s e s s i o n , or t h e
enforcement of a hen, or an adjudication between conflicting
claims of title, possession, or right of possession of specific
real property, or requiring its transfer or sale (Register
of Deeds vs. Mercado, 72 Phil. 353).
240
RULE 13 FILING AND SERVICE OF PLEADINGS, SEC 14
8. In Alberto vs. CA, et al. (G.R. N o . 1 1 9 0 8 8 ,

J u n e 30, 2000), it was further clarified t h a t the rule of
lis pendens likewise applies to all suits or actions which
directly affect not only t h e title to real property, b u t also
those which a r e brought to establish an equitable e s t a t e ,
i n t e r e s t or r i g h t in specific real property or to enforce
any lien, charge or e n c u m b r a n c e a g a i n s t it arising
d u r i n g t h e p r o g r e s s of t h e s u i t . It is also p r o p e r in
proceedings to declare an absolute deed of mortgage, or
to redeem from a foreclosure sale, or to establish a t r u s t ,
o r t o s u i t s for t h e s e t t l e m e n t a n d a d j u s t m e n t o f
p a r t n e r s h i p i n t e r e s t s in real property.
9. However, w h e r e t h e complaint merely a s k s for

the p a y m e n t of construction services and materials, with
damages, but does not a s s e r t any encumbrance over the
property on which t h e unpaid constructions were made,
the a n n o t a t i o n of a lis pendens on the land is not proper.
It is only a p e r s o n a l action for collection, w i t h o u t any
a v e r m e n t of any enforceable right, i n t e r e s t or lien upon
the subject property.
Even if t h e contractor's lien u n d e r Art. 2242 of the
Civil Code h a d been alleged in favor of plaintiff, still the
desired annotation would be unjustified as a collection case
is not the proper mode for the enforcement of a contractor's
lien. F u r t h e r m o r e , said Art. 2242 finds application only
where t h e r e is a concurrence of credits and a showing
t h a t d e f e n d a n t ' s p r o p e r t y w a s insufficient t o pay t h e
concurring d e b t s , or t h a t t h e claim w a s in connection
with insolvency or other actions where claims of preferred
c r e d i t o r s h a v e to be a s c e r t a i n e d (Atlantic Erectors,
Inc. vs. Herbal Cove Realty Corp., G.R. No. 148568,
Mar. 20, 2003).
10. For a further discussion of the other legal aspects
and effects of a notice of lis pendens, see Romero vs. CA,
et al. (G.R. No. 142406, May 16, 2005).
241
R U L E 14
SUMMONS
S e c t i o n 1. Clerk to issue summons. — U p o n t h e

filing of the complaint and the payment of the
requisite legal fees, the clerk of court shall
forthwith issue the corresponding summons to the
defendants, (la)
S e c . 2 . Contents. — T h e s u m m o n s s h a l l b e
directed to the defendant, signed by the clerk of
c o u r t u n d e r s e a l , a n d c o n t a i n : (a) t h e n a m e o f t h e
c o u r t a n d t h e n a m e s o f t h e p a r t i e s t o t h e a c t i o n ; (b)
a direction that the defendant answer within the
t i m e fixed by t h e s e R u l e s ; a n d (c) a n o t i c e t h a t u n l e s s
the defendant so answers, plaintiff will take
judgment by default and may be granted the relief
a p p l i e d for.
A c o p y of t h e c o m p l a i n t a n d o r d e r for
a p p o i n t m e n t of g u a r d i a n ad litem, if a n y , s h a l l be
attached to the original and each copy of the
s u m m o n s . (3a)
NOTES
1. J u r i s d i c t i o n c a n n o t be acquired over t h e defen-

d a n t w i t h o u t service of s u m m o n s , e v e n if he knows of
t h e case a g a i n s t him, unless he voluntarily s u b m i t s to t h e
jurisdiction of t h e court by a p p e a r i n g t h e r e i n as t h r o u g h
his counsel filing t h e corresponding pleading in t h e case
(Habana vs. Vamenta, et al., L-27091, June 30, 1970).
Even if jurisdiction over him was not originally acquired
due to defective service of s u m m o n s , t h e court acquires
j u r i s d i c t i o n over his p e r s o n by his act of s u b s e q u e n t l y
filing a motion for reconsideration (Soriano vs. Palacio,
L-17469, Nov. 28, 1964), or by j o i n t l y s u b m i t t i n g a
242
RULE 14 SUMMONS SECS. 1-2
compromise a g r e e m e n t for a p p r o v a l of t h e t r i a l court

(Algrabe vs. CA, et al., L-24458-64, July 31, 1969), or
where he signed t h e compromise a g r e e m e n t to g u a r a n t e e
the p a y m e n t of t h e obligation of the impleaded defendants
and said a g r e e m e n t was approved and was made t h e basis
of t h e j u d g m e n t on c o m p r o m i s e (Rodriguez, et al. vs.
Alikpala, et al, L-38314, June 25, 1974). But w h e r e t h e
d e f e n d a n t d i e d b e f o r e t h e filing o f t h e a c t i o n a n d
summons was served on his co-defendant, the court
never acquired jurisdiction over t h e former and j u d g m e n t
as to him is a nullity. The deceased has no more civil
personality and even the voluntary appearance of
counsel for him will be ineffective (Dumlao vs. Quality
Plastic Products, Inc., L-27956, April 30, 1976).
2. The failure to a t t a c h a copy of t h e complaint to

t h e s u m m o n s (Pagalaran vs. Ball at an, et al., 13 Phil.
135) or a copy of t h e order appointing a g u a r d i a n ad litem
(Castaho vs. Castano, 96 Phil. 533) a r e mere technical
defects a n d t h e service of s u m m o n s vests jurisdiction in
the court over the defendant who may thereby be
declared in default for failure to file an answer.
3 . W h e r e t h e d e f e n d a n t h a s a l r e a d y been served
with summons on the original complaint, no further
s u m m o n s is r e q u i r e d on t h e a m e n d e d c o m p l a i n t if it
does not introduce new causes of action (Ong Peng vs.
Custodio, L-14911, Mar. 25, 1961); b u t w h e r e t h e
defendant was declared in default on the original
complaint and t h e plaintiff subsequently filed an amended
complaint, new summons m u s t be served on the defendant
on t h e amended complaint as t h e original complaint was
deemed w i t h d r a w n upon such a m e n d m e n t (Atkins, Kroll
& Co. vs. Domingo, 44 Phil. 680).
4. F u r t h e r m o r e , if the defendant had not yet
appeared by filing adversary pleadings and an amended
complaint i n t r o d u c i n g new c a u s e s of action is filed, a
243
new s u m m o n s m u s t be served upon him as r e g a r d s t h e

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

summons is returned without being served on
a n y or all of t h e d e f e n d a n t s , the s e r v e r shall
also serve a copy of the return on the p l a i n t i f f s
c o u n s e l , s t a t i n g t h e r e a s o n s for t h e f a i l u r e o f
s e r v i c e , w i t h i n five (5) d a y s t h e r e f r o m . In s u c h a
case, or if the s u m m o n s has been lost, the clerk,
on d e m a n d of the plaintiff, may issue an alias
244
NOTES
1. T h e e n u m e r a t i o n in Sec. 3 of t h e p e r s o n s who
may validly serve s u m m o n s is exclusive. T h u s , w h e r e
s u m m o n s w a s served, without authority granted by t h e
court, by a police s e r g e a n t (Sequito vs. Letrondo, 105 Phil.
1139), by a p o s t m a s t e r (Olar vs. Cuna, L-47935, May 5,
1978), or by a p a t r o l m a n (Bello vs. Ubo, et al., L-30353,
Sept. 30, 1982), such service was invalid and t h e court
did not acquire jurisdiction over t h e defendant.
2. Proof of service is r e q u i r e d to be given to t h e

p l a i n t i f f s counsel in order to enable him to move for a
default order should t h e defendant fail to a n s w e r on time
or, in case of non-service, so t h a t alias s u m m o n s may be
sought. In e i t h e r case, u n d e r this amended section, t h e
s e r v e r m u s t s e r v e a copy of t h e r e t u r n on p l a i n t i f f s
counsel within 5 days from completion or failure of t h e
service, w h i c h r e q u i r e m e n t w a s a b s e n t i n t h e former
Rules.
S e c . 6. Service in person on defendant. — When-

e v e r practicable, the s u m m o n s shall be served by
handing a copy thereof to the defendant in person,
or, if he r e f u s e s to r e c e i v e and s i g n for i t , b y
t e n d e r i n g i t t o h i m . (7a)
S e c . 7. Substituted service. — If, for j u s t i f i a b l e

causes, the defendant cannot be served within a
reasonable time as provided in the preceding
s e c t i o n , s e r v i c e m a y b e e f f e c t e d (a) b y l e a v i n g c o p i e s
of the summons at the defendant's residence with
some person of suitable age and discretion then
r e s i d i n g t h e r e i n , o r (b) b y l e a v i n g t h e c o p i e s a t
d e f e n d a n t ' s office o r r e g u l a r p l a c e o f b u s i n e s s w i t h
s o m e c o m p e t e n t p e r s o n i n c h a r g e thereof. (8a)
245
NOTES
1. T h e s e t w o s e c t i o n s p r o v i d e for t w o m o d e s of
service of summons. The third mode is service of summons
by publication (Secs. 14, 15 a n d 16). The court may also
provide for any other m a n n e r as it may deem sufficient
(Sec. 15).
2. S u m m o n s cannot be served by mail. Where
service of s u m m o n s is m a d e by publication, "a copy of
t h e s u m m o n s a n d o r d e r of t h e c o u r t s h a l l be s e n t by
registered mail to t h e last known a d d r e s s of t h e defen-
d a n t " (Sec. 15). T h a t r e s o r t to r e g i s t e r e d mail is only
complementary to service of s u m m o n s by publication, b u t
it does not m e a n t h a t service by r e g i s t e r e d mail alone
would suffice. T h u s , Sec. 22 of t h e former Rule entitled
"Proof of service by registered mail," which c r e a t e d t h a t
m i s i m p r e s s i o n , a l t h o u g h i t a c t u a l l y r e f e r r e d only t o
t h e r e g i s t e r e d m a i l as a c o m p l e m e n t in s u m m o n s by
publication, h a s been eliminated and h a s not been
r e p r o d u c e d i n t h i s revised Rule. For t h a t m a t t e r , t h e
p u r p o s e it i n t e n d e d to serve is a t t e n d e d to by Sec. 13,
Rule 13.
3. In ejectment cases, being in personam, p e r s o n a l

service of s u m m o n s on t h e defendant w i t h i n t h e s t a t e of
t h e forum is e s s e n t i a l to a c q u i r e j u r i s d i c t i o n over his
person, hence s u m m o n s by publication is null and void
(Ilaya Textile Market, Inc. vs. Ocampo, et al, L-27823,
Mar. 20, 1970).
4. W h e r e t h e action is in personam a n d t h e defen-

d a n t is in the Philippines, service must be made in
accordance w i t h Sec. 7. S u b s t i t u t e d service should be
availed of only w h e r e t h e defendant c a n n o t be promptly
s e r v e d in p e r s o n (Litonjua vs. CA, et al, L-46265,
Oct. 28, 1977).
246
RULE 14 SUMMONS SEC. 8
5. The impossibility of personal service should be

explained in t h e proof of service showing t h a t efforts
were e x e r t e d therefor, hence t h e r e s o r t to s u b s t i t u t e d
service (Keister vs. Navarro, et al., L-29067, May 31,
1977) a n d such facts m u s t be r e p o r t e d in t h e proof of
s e r v i c e , o t h e r w i s e t h e s u b s t i t u t e d service i s i n v a l i d
(Busuego vs. CA, et al, L-48955, June 30, 1971; Arevalo,
et al. vs. Quilatan, et al., G.R. No. 57892, Sept. 21, 1982;
Ponio, et al. vs. IAC, et al., G.R. No. 66782, Dec. 20, 1984;
Venturanza vs. CA, et al., G.R. No. 77760, Dec. 11, 1987;
Samartino vs. Raon, et al, G.R. No. 131482, July 3, 2002).
Where, however, t h e s u b s t i t u t e d service of s u m m o n s
u n d e r s u c h c i r c u m s t a n c e s w a s not objected to by t h e
defendant at t h e t r i a l where he voluntarily appeared by
counsel a n d t h i s objection was raised only for t h e first
time on appeal, t h e r e was no question t h a t said s u m m o n s
was actually a n d timely received by t h e defendant. The
doctrine in t h e aforecited cases was not applied and such
s u b s t i t u t e d service of s u m m o n s was declared valid.
W h a t e v e r defect t h e r e was in such mode of service was
deemed waived and t h e court had acquired jurisdiction
over t h e p e r s o n of t h e d e f e n d a n t by his v o l u n t a r y
submission t h e r e t o (Boticano vs. Chu, G.R. No. 58036,
Mar. 16, 1987; cf. Umandap vs. Sabio, Jr., et al, G.R.
No. 140244, Aug. 29, 2000).
6. Although t h e wife was not personally served with

summons, t h e service of such summons on her husband
was binding on her, where h e r husband apprised her of
t h a t fact by t e l e g r a m a n d she was also served with a
copy of t h e writ of preliminary a t t a c h m e n t issued in the
case; hence, she was duly alerted to t h e filing and pen-
dency of t h e action against her (De Leon vs. Hontanosas,
et al, L-40377, Oct. 29, 1975).
S e c . 8. Service upon entity without juridical

personality. — W h e n p e r s o n s a s s o c i a t e d in an e n t i t y
247
without juridical personality are sued under the

name by which they are generally or commonly
k n o w n , s e r v i c e may be effected u p o n all the
defendants by serving upon any one of them, or
u p o n t h e p e r s o n i n c h a r g e o f t h e office o r p l a c e o f
business maintained in such name. But such
s e r v i c e s h a l l n o t bind i n d i v i d u a l l y a n y p e r s o n w h o s e
connection with the entity has, upon due notice,
b e e n s e v e r e d b e f o r e t h e a c t i o n w a s b r o u g h t . (9a)
NOTES
1. As a g e n e r a l rule a n d as provided in Sec. 1 of

Rule 3, only n a t u r a l or juridical persons may be p a r t i e s
in a civil action, b u t "entities a u t h o r i z e d by law" may
likewise be p a r t i e s to a suit. Accordingly, Sec. 15 of said
Rule provides t h a t an entity without juridical personality
may be sued u n d e r t h e circumstances prescribed t h e r e i n
in connection w i t h a t r a n s a c t i o n it may have e n t e r e d into
and t h e p r e s e n t section provides t h e rule for s u m m o n s
thereon.
I t m u s t n o n e t h e l e s s b e observed t h a t s u c h e n t i t y
without juridical personality can be sued, but cannot
sue by initiating an original civil action. However, it is
s u b m i t t e d t h a t as a m a t t e r of fairness a n d logical
procedure, once it is impleaded as a defendant to a suit,
it m a y also file c o u n t e r c l a i m s , c r o s s - c l a i m s or o t h e r
initiatory pleadings for claims it may properly avail itself
of as, and since it is already, a p a r t y to a suit.
Also, t h e previous provisions of Sec. 9 of this Rule
on this m a t t e r referred to "persons associated in business,"
t h u s giving rise to t h e impression t h a t only associations
engaged in b u s i n e s s a r e contemplated t h e r e i n and can be
sued as such defendants. This section h a s been revised to
refer t o a n d i n c l u d e " p e r s o n s a s s o c i a t e d i n a n e n t i t y
w i t h o u t j u r i d i c a l p e r s o n a l i t y , " since a s s o c i a t i o n s not
engaged in business or commercial activity, such as civic
248
RULE 14 SUMMONS S E C S . 9-10
associations or organizations, can also commit actionable

wrongs which can be a cause of action in a civil case.
2. Where the action was brought against the
"Cerisco B l a c k c a t T r a d i n g , " which d e s i g n a t i o n w a s a
combination of t h e t r a d e m a r k and business name u n d e r
which the owners of the e s t a b l i s h m e n t were doing
business, t h e s u m m o n s served upon t h e "president/owner/
manager" of said firm, although they were not impleaded
as defendants in t h e complaint, was valid and t h e court
a c q u i r e d j u r i s d i c t i o n over t h e i r p e r s o n s a s t h e s a m e
complied w i t h t h e provisions of Sec. 9 (now, Sec. 8) of
this Rule on service upon associations (Ablaza vs. CIR,
et al, L-33906, Dec. 21, 1983).
S e c . 9. Service upon prisoners. — W h e n t h e

d e f e n d a n t is a p r i s o n e r c o n f i n e d in a jail or
institution, service shall be effected upon h i m by
t h e officer h a v i n g t h e m a n a g e m e n t o f s u c h j a i l o r
institution w h o is deemed deputized as a special
s h e r i f f for s a i d p u r p o s e . (12a)
S e c . 10. Service upon minors and incompetents. —

When the defendant is a minor, insane or otherwise
an incompetent, service shall be made upon him
personally and on his legal guardian if he has one,
o r i f n o n e , u p o n h i s g u a r d i a n a d litem w h o s e
a p p o i n t m e n t s h a l l be a p p l i e d for by t h e plaintiff.
In the case of a minor, service may also be made
on h i s f a t h e r or m o t h e r . (10a, 11a)
NOTES
1. The i m p o r t a n t change introduced in Sec. 9 of this

Rule is the deputization as a special sheriff of the head of
the penal institution for t h e service of summons upon a
p r i s o n e r confined t h e r e i n . Consequently, t h a t officer
who h a s the m a n a g e m e n t of t h e prison facility shall be
249
charged with t h e duty of complying w i t h the provisions

of Secs. 4 and 5 of t h i s Rule relative to the r e t u r n on t h e
s u m m o n s on t h e prisoner.
2. W i t h r e g a r d to Sec. 10, t h e c h a n g e s consist of
t h e p r e s e n t r e q u i r e m e n t t h a t s u m m o n s should be served
upon t h e minor, regardless of his age, a n d upon his legal
g u a r d i a n or also upon e i t h e r of his p a r e n t s . In t h e case
of an i n c o m p e t e n t , service m u s t also be m a d e on h i m
p e r s o n a l l y or u p o n his legal g u a r d i a n , b u t n o t on his
p a r e n t s unless, obviously, when they are his legal
g u a r d i a n s . In any e v e n t , if t h e minor or i n c o m p e t e n t
has no legal guardian, the plaintiff m u s t obtain the
a p p o i n t m e n t of a g u a r d i a n ad litem for him.
S e c . 11. Service upon domestic private juridical

entity. — W h e n t h e d e f e n d a n t is a c o r p o r a t i o n ,
partnership or association organized under the
laws of the Philippines with a juridical personality,
service may be made on the president, managing
partner, general manager, corporate secretary,
t r e a s u r e r , o r i n - h o u s e c o u n s e l . (13a)
NOTES
1. U n d e r t h e f o r m u l a t i o n in Sec. 13 of t h i s Rule
from which t h i s a m e n d e d section w a s t a k e n , it w a s held
t h a t service upon a person o t h e r t h a n those mentioned
t h e r e i n i s i n v a l i d a n d does not b i n d t h e c o r p o r a t i o n
(Delta Motors Corp. vs. Pamintuan, et al., L-41667,
April 30, 1976, citing Reader vs. District Court, 94 Pac.
2nd 8581, holding t h a t service of s u m m o n s on t h e wife of
the corporate secretary was not binding on t h e corporation;
cf. AM Trucking, Inc. vs. Buencamino, et al., G.R.
No. 62445, Aug. 31, 1983). B u t in Summit Trading &
Dev. Corp. vs. Avendano, et al. (G.R. No. 60038, M a r . 18,
1985), s u m m o n s for t h e corporation served on the secretary
of t h e p r e s i d e n t thereof was held to be binding on said
250
RULE 14 SUMMONS S E C . 11
corporation as t h e secretary was considered an "agent"

of t h e corporation. The s a m e is t r u e w h e r e s u m m o n s
was s e r v e d on t h e a d m i n i s t r a t i v e Chief of F i n a n c e of
defendant corporation (Far Corp., et al. vs. Francisco,
etc., et al., G.R. No. 57218, Dec. 12, 1986).
2. Also, it w a s ruled t h a t service of s u m m o n s upon

t h e a s s i s t a n t g e n e r a l m a n a g e r for operations of a cor-
poration, holding office at a sub-station is valid as he is,
in effect, a "manager" or "agent" of t h e corporation (Villa
Rey Transit, Inc., et al. vs. Far East Motor Corp., et al.,
L-31339, Jan. 31, 1978) even if t h e p a p e r s were l a t e r left
with t h e teller due to t h e refusal of said a s s i s t a n t general
m a n a g e r to receive t h e s a m e upon t h e t e n d e r thereof to
him. W h e r e , h o w e v e r , s u m m o n s in a case a g a i n s t a
c o r p o r a t i o n , w i t h h e a d office i n M a n i l a b u t w i t h a n
agency in Cebu, was served on its supposed branch
m a n a g e r in Cebu b u t he a p p a r e n t l y betrayed t h e t r u s t
of t h e d e f e n d a n t c o r p o r a t i o n by allowing an o r d e r of
default to be t a k e n a g a i n s t it, it was held t h a t s u m m o n s
was not validly served and no jurisdiction was acquired
over t h e defendant corporation (First Integrated Bonding
& Insurance Co., Inc. vs. Dizon, etc., et al., G.R. No. 61289,
Oct. 27, 1983).
3. Along t h e same rationale, it was declared t h a t a

lawyer who had made two special appearances in court
in behalf of a d e f e n d a n t corporation, to challenge t h e
validity of service of s u m m o n s upon it, is an a g e n t of
said corporation u n d e r Sec. 3 of this Rule and s u m m o n s
intended for said corporation may validly be served on
him (Filoil Marketing Corp. vs. Marine Dev. Corp. of the
Phil., L-29636, Sept. 30, 1982; Lingner & Fisher GMBH
vs. IAC, et al, G.R. No. 63557, Oct. 28, 1983).
4. The foregoing doctrines were obviously dictated
by the consideration t h a t the former Sec. 13 of this Rule
allowed service u p o n a d e f e n d a n t c o r p o r a t i o n to "be
made on t h e president, manager, secretary, cashier, agent
251
or any of its directors." The aforesaid t e r m s were obvi-

ously ambiguous and susceptible of broad a n d sometimes
illogical i n t e r p r e t a t i o n s , especially t h e word "agent" of
t h e corporation. The Filoil case, involving t h e litigation
lawyer of the corporation who precisely a p p e a r e d to
challenge t h e validity of service of s u m m o n s , b u t whose
very a p p e a r a n c e for t h a t p u r p o s e w a s seized u p o n t o
validate the defective service, is an illustration of t h e need
for t h i s revised section w i t h limited scope a n d specific
terminology. T h u s , t h e a b s u r d r e s u l t in t h e Filoil case
necessitated t h e a m e n d m e n t p e r m i t t i n g service only on
t h e in-house counsel of t h e corporation who is in effect
an employee of t h e corporation, as d i s t i n g u i s h e d from
a n i n d e p e n d e n t practitioner.
5. The aforestated considerations n o t w i t h s t a n d i n g ,

it was believed t h a t t h e u l t i m a t e t e s t on t h e validity a n d
sufficiency of service of s u m m o n s is w h e t h e r t h e s a m e
a n d t h e a t t a c h m e n t s t h e r e t o were u l t i m a t e l y received by
t h e corporation u n d e r such c i r c u m s t a n c e s t h a t n o u n d u e
prejudice w a s s u s t a i n e d by it from t h e p r o c e d u r a l lapse,
a n d t h a t it w a s afforded full o p p o r t u n i t y to p r e s e n t its
r e s p o n s i v e p l e a d i n g s . T h i s i s b u t i n accord w i t h t h e
entrenched rule that the ends of substantial justice
s h o u l d not be s u b o r d i n a t e d to t e c h n i c a l i t i e s a n d , for
which purpose, each case m u s t be e x a m i n e d w i t h i n t h e
factual milieu peculiar to it.
Thus, it was held t h a t although s u m m o n s was
served on a s e c r e t a r y of t h e corporation (not t h e official
corporate secretary) and, therefore, such service was made
on a p e r s o n not a u t h o r i z e d to receive t h e s a m e , w h e r e
said s u m m o n s a n d t h e complaint were in fact seasonably
received by t h e corporation from its said clerk, t h e r e was
s u b s t a n t i a l compliance with the rule on service of
s u m m o n s (G & G Trading Corporation vs. CA, et al., G.R.
No. 78299, Feb. 29, 1988).
252
6. However, t h e foregoing oscillating holdings were

clarified and/or o v e r t u r n e d in E.B. Villarosa & Partner
Co., Ltd. vs. Benito (G.R. No. 136426, Aug. 6, 1999) which
d e c l a r e d t h a t t h e d o c t r i n e o f s u b s t a n t i a l compliance
followed u n d e r t h e 1964 Rules is no longer applicable in
view of t h e a m e n d m e n t s introduced by t h e 1997 Rules of
Civil Procedure. It was pointed out t h a t t h e new rule on
this point is restricted, limited and exclusive, as follows:
"The designation of t h e persons or officers who
a r e a u t h o r i z e d to accept s u m m o n s for a domestic
corporation or p a r t n e r s h i p is now limited and more
clearly specified in Sec. 11, Rule 14 of the 1997 Rules
of Civil P r o c e d u r e . T h e r u l e now s t a t e s ' g e n e r a l
m a n a g e r ' i n s t e a d of only ' m a n a g e r ' ; 'corporate
secretary' instead of 'secretary'; and 'treasurer'
instead of 'cashier.' The p h r a s e 'agent, or any of
its directors' is conspicuously deleted in the new rule."
This ruling w a s r e i t e r a t e d in Mason, et al. vs. CA,
et al. (G.R. No. 144662, Oct. 13, 2003), where service of
s u m m o n s was declared invalid because it was served on a
filing c l e r k o f d e f e n d a n t c o r p o r a t i o n a l t h o u g h t h e
l a t t e r a p p e a r e d to have eventually received the same.
7. A real p a r t y in interest-plaintiff is one who has

a legal right, while a real p a r t y in interest-defendant
is one whose act or omission violates t h e legal rights of
the former. Where the defendant still existed as a
corporation w h e n t h e cause of action accrued, summons
may properly be served on it even if at the time of the
i s s u a n c e a n d receipt of s u m m o n s it had a l r e a d y been
dissolved. A d e f e n d a n t corporation is subject to s u i t
even if dissolved, as c o n t e m p l a t e d in Sec. 122 of t h e
Corporation Code. It should, therefore, be amenable to
such coercive process which may be served through any
of t h e p e r s o n s m e n t i o n e d in Sec. 13 (now, Sec. 11),
Rule 12 (Rebollido, et al. vs. CA, et al., G.R. No. 81123,
Feb. 28, 1989).
253
R U L E 14 R E M E D I A L LAW C O M P E N D I U M S E C . 12
S e c . 12. Service upon foreign private juridical entity.

— W h e n t h e d e f e n d a n t is a f o r e i g n p r i v a t e j u r i d i c a l
entity which has transacted business in the
Philippines, service may be m a d e on its r e s i d e n t
a g e n t d e s i g n a t e d i n a c c o r d a n c e w i t h l a w for t h a t
p u r p o s e , or, if t h e r e be no s u c h a g e n t , on the
g o v e r n m e n t official d e s i g n a t e d b y l a w t o t h a t effect,
or on any of its officers or agents within the
P h i l i p p i n e s . (14a)
NOTES
1. This section h a s been a m e n d e d to s u b s t i t u t e t h e

p h r a s e "foreign p r i v a t e juridical entity which h a s t r a n -
sacted business in t h e Philippines," being more embracing
and accurate, for t h e provision in t h e former Section 14
of t h i s Rule which referred to a "foreign corporation, or
a joint non-stock company or association, doing business
in t h e Philippines."
2. Formerly, w h e r e t h e foreign p r i v a t e corporation

h a d no r e s i d e n t a g e n t in t h e P h i l i p p i n e s or officers or
o t h e r a g e n t s h e r e , service of s u m m o n s w a s made on t h e
g o v e r n m e n t officials d e s i g n a t e d by law, to wit: (a) for
b a n k i n g , savings a n d loan or t r u s t corporations, upon t h e
S u p e r i n t e n d e n t of B a n k s (Sec. 17, R.A. 337); (b) for
i n s u r a n c e corporations, on t h e I n s u r a n c e Commissioner
(Sec. 177, Insurance Act, as a m e n d e d by Act 3152); and
(c) in t h e case of o t h e r corporations, on t h e S e c r e t a r y of
Commerce (Sec. 72, Act 1259, as a m e n d e d by CA. 287,
R.A. 337 a n d R.A. 1055). H o w e v e r , Sec. 123 of t h e
C o r p o r a t i o n Code now p r o v i d e s t h a t w h e n a foreign
p r i v a t e corporation applies for a license to do business
in the Philippines, it shall be granted subject to the
condition, inter alia, t h a t if it h a s no r e s i d e n t a g e n t ,
s u m m o n s a n d processes i n t e n d e d for it shall be served
on t h e Securities a n d Exchange Commission.
254
3. W h e r e t h e service of s u m m o n s is m a d e on t h e
g o v e r n m e n t official d e s i g n a t e d by law, t h e d e f e n d a n t
corporation h a s 30 days from its receipt of the s u m m o n s
w i t h i n w h i c h to file i t s a n s w e r (Sec. 2, Rule 11). If
served on its r e s i d e n t agent, officers or other a g e n t s in
the Philippines, t h e 15-day reglementary period applies
(see Facilities Management Corp. vs. DelaOsa, L-38649,
Mar. 28, 1979).
4. The former Sec. 14 of t h i s Rule required, as a

condition sine qua non, t h a t t h e foreign corporation is
doing business in t h e Philippines. In t h e absence of proof
thereof, b u t t h e c l a i m of t h e p l a i n t i f f is b a s e d on a
c o n t r a c t w i t h said foreign corporation which provides
t h a t all controversies a r i s i n g from said contract "shall
fall u n d e r t h e jurisdiction of Philippine Courts," t h e suit
may b e i n s t i t u t e d i n t h e P h i l i p p i n e s a n d s e r v i c e o f
s u m m o n s m a y be m a d e by publication u n d e r a liberal
a p p l i c a t i o n of Sec. 17 (now, Sec. 15) of t h i s Rule in
r e l a t i o n to Rule 4 (Lingner & Fisher GMBH vs. IAC,
et al., supra).
It h a s , however, been held t h a t a foreign corporation,
even if it is not doing business in the Philippines, may be
sued for acts done against persons in this country u n d e r
the rationale t h a t even if it is not doing business here, it
is also not b a r r e d from seeking redress from Philippine
c o u r t s (Facilities Management Corp. vs. De la Osa,
supra; Wang Laboratories, Inc. vs. Mendoza, et al., G.R.
No. 72147, Dec. 1, 1987). Note t h a t Sec. 12 now merely
r e q u i r e s t h a t t h e foreign c o r p o r a t i o n has transacted
business here.
S e c . 13. Service upon public corporations. — W h e n

the defendant is the Republic of the Philippines,
service may be effected on the Solicitor General; in
case of a p r o v i n c e , city or m u n i c i p a l i t y , or like
p u b l i c c o r p o r a t i o n s , s e r v i c e m a y b e e f f e c t e d o n its
265
e x e c u t i v e h e a d , o r o n s u c h o t h e r officer o r o f f i c e r s
a s t h e l a w o r t h e c o u r t m a y d i r e c t . (15)
S e c . 14. Service upon defendant whose identity or

whereabouts are unknown. — In a n y a c t i o n w h e r e t h e
defendant is designated as an unknown owner, or
the like, or w h e n e v e r his w h e r e a b o u t s are u n k n o w n
and cannot be ascertained by diligent inquiry,
service may, by leave of court, be effected upon
h i m by publication in a n e w s p a p e r of general
c i r c u l a t i o n a n d i n s u c h p l a c e s a n d for s u c h t i m e a s
t h e c o u r t m a y o r d e r . (16a)
S e c . 16. Extraterritorial service. — W h e n t h e

defendant does not reside and is not found in the
Philippines, and the action affects the personal
status of the plaintiff or relates to, or the subject of
w h i c h is, property within the Philippines, in w h i c h
the defendant has or claims a lien or interest, actual
or contingent, or in which the relief demanded
consists, wholly or in part, in excluding the
defendant from any interest therein, or the property
of the defendant has been attached within the
Philippines, service may, by leave of court, be
effected out of the Philippines by personal service
as u n d e r s e c t i o n 6; or by p u b l i c a t i o n in a n e w s p a p e r
o f g e n e r a l c i r c u l a t i o n i n s u c h p l a c e s a n d for s u c h
time as the court may order, in which case a copy
of the s u m m o n s and order of the court shall be sent
by registered mail to the last k n o w n address of the
defendant, or in any other manner the court may
d e e m sufficient. Any order granting such leave
shall specify a reasonable time, w h i c h shall not be
l e s s t h a n s i x t y (60) d a y s a f t e r n o t i c e , w i t h i n w h i c h
t h e d e f e n d a n t m u s t a n s w e r . (17a)
256
NOTES
1. Sec. 15 provides for t h e four instances wherein

e x t r a t e r r i t o r i a l service of s u m m o n s is proper. In any of
such four instances, service of s u m m o n s may, by leave
of court, be effected by personal service, by publication
w i t h a copy of t h e s u m m o n s a n d t h e court o r d e r s e n t
by r e g i s t e r e d mail, or in any o t h e r m a n n e r which t h e
court may deem sufficient. Where summonses were s e n t
to d e f e n d a n t s who w e r e residing abroad, by registered
mail which they duly received and even filed a pleading
questioning such mode of service, the third mode of service
was substantially complied w i t h and such service is valid,
especially where t h e court thereafter granted t h e m 90 days
w i t h i n w h i c h to file t h e i r a n s w e r (De Midgely vs.
Ferandos, L-34313, May 13, 1975; Carioga, et al. vs.
Malaya, et al., L 48375, Aug. 13, 1986).
2. Where t h e h u s b a n d is a nonresident, but his wife

is a r e s i d e n t a n d is his attorney-in-fact who even com-
menced an action in his behalf, in a complaint a g a i n s t
said n o n r e s i d e n t d e f e n d a n t , s u m m o n s may validly be
served on his wife a n d t h e court has jurisdiction over said
n o n r e s i d e n t (Gemperle vs. Schenker, et al., L-18164,
Jan. 23, 1967).
3. U n d e r Sec. 15 of t h i s Rule, e x t r a t e r r i t o r i a l
service of s u m m o n s is proper only in four instances, viz.:
(a) w h e n t h e action affects t h e p e r s o n a l s t a t u s of t h e
plaintiff; (b) w h e n the action relates to, or the subject of
which is p r o p e r t y w i t h i n t h e Philippines in which t h e
d e f e n d a n t h a s or c l a i m s a lien or i n t e r e s t , a c t u a l or
contingent; (c) w h e n t h e relief demanded in such action
consists, wholly or in p a r t , in excluding the defendant
from any i n t e r e s t in property located in the Philippines;
a n d (d) w h e n t h e d e f e n d a n t n o n r e s i d e n t ' s p r o p e r t y
has been a t t a c h e d in t h e P h i l i p p i n e s (De Midgely vs.
Ferandos, supra).
267
4. An action for injunction to r e s t r a i n d e f e n d a n t s

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

personal s t a t u s of plaintiff or any property in the
258
Philippines in which defendants have or claim an

i n t e r e s t or w h i c h t h e p l a i n t i f f h a s a t t a c h e d , it is a
personal action in personam. Consequently, personal or
s u b s t i t u t e d service of s u m m o n s on defendants, not
e x t r a t e r r i t o r i a l service, is necessary to confer jurisdiction
on t h e court. In a personal action for injunction, therefore,
e x t r a t e r r i t o r i a l service of t h e s u m m o n s and complaint
o n t h e n o n r e s i d e n t d e f e n d a n t s c a n n o t confer o n t h e
court jurisdiction or power to compel t h e m to obey its
orders (Kawasaki Port Service Corp., et al. vs. Amores,
etc., et al., G.R. No. 58340, July 16, 1991).
7. In Asiavest Limited vs. CA, et al. (G.R. No. 128803,

Sept. 25, 1998), an action was filed in Hongkong against
a P h i l i p p i n e r e s i d e n t for a s u m of money. S u m m o n s
t h e r e i n was served directly t h r o u g h plaintiffs Philippine
counsel u p o n an o c c u p a n t of d e f e n d a n t ' s residence in
Quezon City. Thereafter, t h e j u d g m e n t of the Hongkong
court w a s r e n d e r e d a n d s o u g h t to be executed in t h e
Philippines, b u t it was resisted for lack of jurisdiction over
the person of t h e defendant.
M a t t e r s of procedure, such as service of summons, are
governed by t h e lex loci, in t h i s case, those of Hong-
kong. T h e r e being no proof on this score, u n d e r t h e rule
on processual p r e s u m p t i o n t h e same are deemed to be
the s a m e as Philippine law. In the p r e s e n t case, such
s u m m o n s served on a n o n r e s i d e n t defendant in an
action in personam is not valid since e x t r a t e r r i t o r i a l
service of s u m m o n s on nonresidents is allowed only in
the instances provided u n d e r Sec. 17, Rule 14. Service of
s u m m o n s in this case being invalid, the Hongkong
j u d g m e n t c a n n o t be given effect h e r e , no j u r i s d i c t i o n
having been acquired over the defendant.
8. A n e w s p a p e r of general circulation for purposes
of s u m m o n s by publication, is one which is published for
the dissemination of local news and general information,
has a bona fide subscription list of subscribers, is published
259
at regular intervals and is not published for or devoted

to t h e i n t e r e s t of a p a r t i c u l a r group of persons (Basa vs.
Mercado, 61 Phil. 632). See also t h e provisions of R.A.
4883, which required t h a t the newspaper must have
been r e g u l a r l y published for at least two y e a r s before
t h e d a t e of t h e publication in question, a n d P.D. 1079
( J a n . 28, 1977) as discussed in Fortune Motors (Phil.),
Inc. vs. Metropolitan Bank, etc., et al. (G.R. No. 115068,
Nov. 28, 1996).
S e c . 16. Residents temporarily out of the

Philippines. — W h e n a n y a c t i o n i s c o m m e n c e d
against a defendant who ordinarily resides w i t h i n
t h e P h i l i p p i n e s , b u t w h o i s t e m p o r a r i l y o u t o f it,
service may, by leave of court, be also effected out
of the Philippines, as under the preceding section.
(18a)
S e c . 17. Leave of court. — A n y a p p l i c a t i o n to t h e

c o u r t u n d e r t h i s R u l e for l e a v e t o e f f e c t s e r v i c e i n
a n y m a n n e r for w h i c h l e a v e o f c o u r t i s n e c e s s a r y
shall be made by motion in writing, supported by
affidavit of the plaintiff or some person on his
behalf, s e t t i n g forth t h e g r o u n d s for t h e a p p l i -
c a t i o n . (19)
NOTES
1. U n d e r t h e s e provisions, service of s u m m o n s by
publication is a u t h o r i z e d , w i t h prior leave of court:
a. W h e r e t h e identity of t h e defendant is u n k n o w n ;
b. Where t h e w h e r e a b o u t s of t h e defendant is un-
known;
c. W h e r e t h e d e f e n d a n t does not reside a n d is not
found i n t h e P h i l i p p i n e s b u t t h e s u i t c a n p r o p e r l y b e
m a i n t a i n e d a g a i n s t him here, being in rem or quasi in
rem; a n d
260
d. W h e r e t h e d e f e n d a n t is a r e s i d e n t of t h e
Philippines b u t is temporarily out of the country.
2. S u m m o n s in a s u i t in personam a g a i n s t a
resident of t h e Philippines temporarily absent therefrom
m a y be validly effected by s u b s t i t u t e d service u n d e r
Sec. 7 of t h i s Rule. It is i m m a t e r i a l t h a t the defendant
does not in fact receive actual notice, and the validity of
such service is not affected. While t h e p r e s e n t Sec. 15
provides for modes of service which may also be availed
of in t h e case of a resident defendant temporarily absent,
the n o r m a l mode of service on such temporarily absent
d e f e n d a n t is by such s u b s t i t u t e d service u n d e r Sec. 7
because personal service outside t h e country and service
by publication are not ordinary means of summons
(Montalban, et al. vs. Maxima, L-22997, Mar. 15, 1968).
However, it h a s also been held t h a t in such cases, non-
c o m p l i a n c e w i t h t h e m o d e s of service u n d e r Sec. 18
(now, Sec. 16) is a d e n i a l of due process a n d r e n d e r s
the proceedings null and void (Castillo vs. CFI of Bulacan,
G.R. No. 55869, Feb. 29, 1984).
3. Also, it h a s been ruled t h a t where the defendant

is a r e s i d e n t a n d t h e action is in personam, summons by
publication is invalid as being violative of the due
process clause. Plaintiff's recourse, where personal
service fails, is to a t t a c h p r o p e r t i e s of t h e d e f e n d a n t
u n d e r Sec. 1(f), Rule 57, t h u s converting t h e suit to one
in rem or quasi in rem a n d s u m m o n s by p u b l i c a t i o n
will be valid. Where plaintiff fails to or cannot do so, t h e
court should not dismiss t h e action but should order the
case t o b e h e l d p e n d i n g i n t h e a r c h i v e s , s o t h a t t h e
action will not prescribe, until such time as the plaintiff
succeeds i n a s c e r t a i n i n g t h e defendant's w h e r e a b o u t s
or his properties (Pantaleon vs. Asuncion 105 Phil. 761;
Citizens Surety & Insurance Co., Inc. vs. Melencio-Herrera,
et al, L-32170, Mar. 31, 1971; Magdalena Estate, Inc. vs.
Nieto, et al., G.R. No. 54242, Nov. 25, 1983; Filmerco
261
Comm. Co., Inc. vs. IAC, et al., G.R. No. 70661, April 9,
1987).
S e c . 18. Proof of service. — T h e p r o o f of s e r v i c e

of a s u m m o n s shall be made in writing by the server
a n d s h a l l s e t forth t h e m a n n e r , p l a c e a n d d a t e o f
service; shall specify any papers w h i c h have been
served with the process and the name of the person
who received the same; and shall be sworn to when
m a d e by a p e r s o n o t h e r t h a n a s h e r i f f or h i s d e p u t y .
(20)
S e c . 19. Proof of service by publication. — If t h e

service has been made by publication, service may
b e p r o v e d b y t h e affidavit o f t h e p r i n t e r , h i s f o r e m a n
or principal clerk, or of the editor, business or
advertising manager, to w h i c h affidavit a copy of
t h e p u b l i c a t i o n s h a l l b e a t t a c h e d , a n d b y a n affidavit
s h o w i n g the deposit of a copy of the s u m m o n s and
o r d e r for p u b l i c a t i o n i n t h e p o s t o f f i c e , p o s t a g e
prepaid, directed to the defendant by registered mail
t o h i s l a s t k n o w n a d d r e s s . (21)
S e c . 20. Voluntary appearance. — T h e d e f e n d a n t ' s

voluntary appearance in the action shall be
equivalent to service of summons. The inclusion
in a m o t i o n to dismiss of other grounds aside from
lack of jurisdiction over the person of the defendant
s h a l l n o t b e d e e m e d a v o l u n t a r y a p p e a r a n c e . (23a)
NOTE
1. Any form of a p p e a r a n c e in c o u r t , by t h e
defendant, by his a g e n t authorized to do so, or by attorney,
is e q u i v a l e n t to service except w h e r e such a p p e a r a n c e is
precisely to object to t h e jurisdiction of t h e court over t h e
person of t h e d e f e n d a n t (Carballo vs. Encarnacion, 92
Phil. 974). See Notes 4 a n d 5 u n d e r Sec. 1, Rule 16.
262
R U L E 15
MOTIONS
S e c t i o n 1. Motion defined. — A m o t i o n is an
a p p l i c a t i o n for r e l i e f o t h e r t h a n b y a p l e a d i n g , ( l a )
NOTE
1. T h i s a m e n d e d d e f i n i t i o n of a m o t i o n is a
consequence of t h e provisions of Sec. 1, Rule 6 which limit
the m e a n i n g of a pleading to t h e w r i t t e n s t a t e m e n t of the
respective claims a n d defenses submitted by the p a r t i e s
for a p p r o p r i a t e j u d g m e n t , and Sec. 2 of t h e same Rule
which e n u m e r a t e s t h e pleadings allowed. However, as
explained in t h e notes t h e r e u n d e r , a motion may also be
considered in a broad sense as in t h e n a t u r e of a pleading
since it is among t h e p a p e r s filed in court. Hence, Sec. 10
of t h i s Rule r e q u i r e s a qualified application to motions of
the rules applicable to pleadings.
S e c . 2. Motions must be in writing. — All m o t i o n s

shall be in writing except those made in open court
or in t h e c o u r s e of a h e a r i n g or trial. (2a)
S e c . 3. Contents. — A m o t i o n s h a l l s t a t e t h e
relief sought to be obtained and the grounds upon
which it is based, and if required by these Rules or
necessary to prove facts alleged therein, shall be
accompanied by supporting affidavits and other
p a p e r s . (3a)
S e c . 4. Hearing of motion. — E x c e p t for m o t i o n s

which the court may act upon without prejudicing
t h e r i g h t s o f t h e a d v e r s e party, e v e r y w r i t t e n m o t i o n
s h a l l b e s e t for h e a r i n g b y t h e a p p l i c a n t . E v e r y
written motion required to be heard and the notice
263
of the hearing thereof shall be served in such a

m a n n e r as to ensure its receipt by the other party
a t l e a s t t h r e e (3) d a y s b e f o r e t h e d a t e o f h e a r i n g ,
u n l e s s t h e c o u r t for g o o d c a u s e s e t s t h e h e a r i n g o n
s h o r t e r n o t i c e . (4a)
NOTES
1. T h e exceptions to t h e t h r e e - d a y notice r u l e in
Sec. 4 a r e : (a) ex parte m o t i o n s , (b) u r g e n t m o t i o n s
(Bautista vs. Mun. Council of Mandaluyong, Rizal, 98
Phil. 409; Supreme Investment Corp. vs. Engineering
Equipment, Inc., L-25755, April 11, 1972), (c) motions
agreed upon by t h e p a r t i e s to be h e a r d on s h o r t e r notice
(Tuazon & Co. vs. Magdangal, L-15047, Jan. 30, 1962)
or jointly s u b m i t t e d by t h e p a r t i e s , a n d (d) motions for
s u m m a r y j u d g m e n t which m u s t be served at least 10 days
before its h e a r i n g (Sec. 3, Rule 35).
2. This a m e n d e d section e n u n c i a t e s t h e g e n e r a l rule

t h a t all w r i t t e n motions shall be set for h e a r i n g , even if,
as j u s t s t a t e d , t h a t h e a r i n g may be conducted on less t h a n
3 days advance notice. Excepted from such r e q u i r e m e n t
for h e a r i n g a r e t h e so-called non-litigable or non-litigated
motions, m e a n i n g those which may be acted upon by t h e
court w i t h o u t prejudicing t h e r i g h t s of t h e adverse p a r t y .
While a motion m a y be allowed to be filed ex parte
a n d is an exception to t h e 3-day notice rule, it does not
necessarily m e a n t h a t t h e h e a r i n g thereof shall be dis-
pensed with. The court may still h e a r t h e s a m e ex parte,
t h a t is, in t h e absence of t h e opposing p a r t y , since t h e
court can very well see to it t h a t t h e l a t t e r ' s i n t e r e s t s will
be duly protected. An ex parte proceeding merely m e a n s
t h a t it is t a k e n or g r a n t e d at t h e i n s t a n c e a n d for t h e
benefit of one p a r t y , a n d w i t h o u t notice to or contestation
by a n y p a r t y a d v e r s e l y a f f e c t e d (Janin vs. Logan,
209 Ky. 811, 273 S.W. 531; Stella vs. Mosele, 209 III.
App. 53, 19 N.E. 2d 433).
264
RULE 15 MOTIONS S E C S . 5-6
3. It is no longer sufficient to j u s t mail a copy of t h e

motion at least 3 days before t h e scheduled hearing, as
this mode of service h a s often been abused to result in the
adverse p a r t y ' s receipt of such copy after t h e scheduled
h e a r i n g due to t h e delay in t h e mails. Service of t h a t
copy, u n d e r t h i s new section, should be m a d e in such
m a n n e r as shall e n s u r e receipt of t h a t copy at least 3 days
before t h e h e a r i n g . This objective can very easily be
achieved by p e r s o n a l service whenever feasible. For this
r e a s o n , S e c . 11 of R u l e 13 p r o v i d e s t h a t , w h e n e v e r
practicable, service of pleadings and other p a p e r s shall be
done personally, subject to t h e exceptions and sanctions
specified t h e r e i n .
S e c . 6. Notice of hearing. — T h e n o t i c e of h e a r i n g
s h a l l b e a d d r e s s e d t o all p a r t i e s c o n c e r n e d , a n d s h a l l
specify the time and date of the hearing w h i c h must
n o t b e l a t e r t h a n t e n (10) d a y s after t h e f i l i n g o f t h e
m o t i o n . (5a)
S e c . 6. Proof of service necessary. — No w r i t t e n

m o t i o n s e t for h e a r i n g s h a l l b e a c t e d u p o n b y t h e
c o u r t w i t h o u t p r o o f o f s e r v i c e thereof. (6a)
NOTES
1. In t h e C o u r t s of F i r s t I n s t a n c e (now, Regional
Trial Courts) and t h e lower courts, a motion which does
not contain a notice of time and place of hearing is a useless
piece of p a p e r and of no legal effect, e.g., in the case of a
motion for reconsideration of a j u d g m e n t or final order, it
does not interrupt the reglementary period (Manila Surety
& Fidelity Co., Inc. vs. Bath Construction & Co., LI6636,
June 24, 1965; cf. Sebastian vs. Cabal, L-25699,
April 30, 1970). The same is t r u e where the date for the
h e a r i n g of t h e motion is u n i n t e l l i g i b l e , hence fatally
defective (Republic Planters Bank, et al. vs. IAC, et al.,
G.R. No. 63805, Aug. 31, 1984).
265
RULE 16 REMEDIAL LAW COMPENDIUM SECS. 5-6
2. Any motion t h a t does not comply w i t h Secs. 4, 5

a n d 6 of t h i s Rule is a mere scrap of p a p e r , should not be
accepted for filing and, if filed, is not entitled to judicial
cognizance a n d does not affect any r e g l e m e n t a r y period
involved for t h e filing of t h e requisite pleading. T h u s ,
w h e r e t h e motion is (a) directed to t h e clerk of court, not
to t h e p a r t i e s , a n d (b) merely s t a t e s t h a t t h e s a m e is
s u b m i t t e d "for t h e resolution of t h e court upon receipt
thereof," said motion is fatally defective (Cledera, et al.
vs. Sarmiento, et al., L-32450-51, June 10, 1971). This
r u l e h a s b e e n a p p l i e d t o m o t i o n s for n e w t r i a l o r
reconsideration w h e r e no d a t e for h e a r i n g t h e motion is
i n d i c a t e d (Manila Surety & Fidelity Co. vs. Bath
Construction & Co., supra; Fulton Insurance Co. vs.
Manila Railroad Co., L-24263, Nov. 18, 1967; Magno vs.
Ortiz, L-22670, Jan. 31, 1969; In the Matter of Proceedings
for Disciplinary Action Against Vicente Almacen, L-27654,
Feb. 18, 1970; Sebastian vs. Cabal, supra; Vda. deAzarias
vs. Maddela, et al., L-25932, Mar. 19, 1971; Phil.
Advertising Counselors, Inc. vs. Revilla, et al., L-31869,
Aug. 8, 1973; Sacdalan vs. Bautista, L-38014, Mar. 27,
1974; New Japan Motors, Inc. vs. Perucho, L-44387,
Nov. 5, 1976; Firme, et al. vs. Reyes, et al., L-35858,
Aug. 21, 1979).
Where the motion to dismiss, with such defective notice

of h e a r i n g , w a s grounded on lack of cause of action a n d
improper venue, which grounds a r e resolvable on t h e basis
of the complaint and the annexes thereto, such error
a l t h o u g h n o t wholly e x c u s a b l e w a s g r a n t e d a l i b e r a l
consideration a n d given due course by t h e S u p r e m e Court
(Azajor vs. CA, et al., L-40945, Nov. 10, 1986).
3. In Andrada, et al. vs. CA, et al. ( L - 3 1 7 9 1 ,

Oct. 30, 1974), it w a s held t h a t a " M a n i f e s t a t i o n a n d
Motion" a d d r e s s e d to t h e clerk of court a s k i n g h i m to
s u b m i t t h e s a m e to t h e court "immediately upon receipt
t h e r e o f did not comply w i t h t h e r e q u i r e m e n t s of Sec. 5,
266
RULE 15 MOTIONS S E C S . 8, 9
Rule 15 a n d t h e s u b s e q u e n t action of t h e court thereon

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

129 which provides:
"Sec. 16. Time and duration of sessions. — The time
and d u r a t i o n of daily sessions of the Regional Trial Courts
shall be d e t e r m i n e d by t h e S u p r e m e Court: Provided,
however, T h a t a l l m o t i o n s , e x c e p t t h o s e r e q u i r i n g
immediate action, shall be heard in the afternoon of every
Friday, u n l e s s it falls on a holiday, in which case t h e
hearing shall be held on the afternoon of the next
succeeding b u s i n e s s day: Provided, further, T h a t t h e
267
S u p r e m e C o u r t may, for good r e a s o n s , fix a different

motion day in specified areas."
S e c . 8. Omnibus motion. — S u b j e c t to t h e
p r o v i s i o n s of s e c t i o n 1 of R u l e 9, a m o t i o n a t t a c k i n g
a pleading, order, judgment, or p r o c e e d i n g shall
i n c l u d e all o b j e c t i o n s t h e n a v a i l a b l e , a n d all
objections not so included shall be deemed waived.
(8a)
NOTES
1. The omnibus motion rule in Sec. 8 yields to other

specific p r o v i s i o n s . T h u s , for i n s t a n c e , in a motion to
dismiss, t h e failure to object to t h e lack of jurisdiction over
t h e c a s e does not c o n s t i t u t e w a i v e r of t h i s objection.
See Sec. 1, Rule 9, as amended, and t h e discussion t h e r e i n .
2. R e g a r d i n g evidence on motions, see Sec. 7, Rule

133 and notes t h e r e u n d e r .
S e c . 9. Motion for leave. — A m o t i o n for l e a v e to

file a p l e a d i n g o r m o t i o n s h a l l b e a c c o m p a n i e d b y
t h e p l e a d i n g o r m o t i o n s o u g h t t o b e a d m i t t e d , (n)
NOTES
1. The evident p u r p o s e of t h i s new provision is to

provide t h e court with t h e basis for determining the merits
of t h e motion for leave of court to file t h e desired pleading
or motion. Such pleading or motion sought to be a d m i t t e d
is now required to be a t t a c h e d to t h e motion for leave of
court, otherwise t h e l a t t e r m a y be denied. Indeed, it is
too d e m a n d i n g , if not unfair to t h e court a n d t h e adverse
party, to seek a ruling a n d t h e admission of a pleading
sight u n s e e n , so to s p e a k , since t h e court will have to
fathom t h e c o n t e n t s of t h e projected p l e a d i n g a n d t h e
opposing p a r t y cannot intelligently formulate his
268
RULE 15 MOTIONS S E C . 10
opposition to t h e admission thereof.
2. This particularly assumes significance in the filing

of a m e n d e d a n d s u p p l e m e n t a l pleadings both of which
require prior leave of court. If initiatory pleadings are
sought to be a m e n d e d or supplemented, special care m u s t
be t a k e n in t h e admission of t h e same since responsive
p l e a d i n g s a n d r e g l e m e n t a r y periods may be involved.
Also, t h e p r e s e n t r e q u i r e m e n t minimizes the time element
when responsive pleadings would be required. Thus, when
an a m e n d e d or s u p p l e m e n t a l complaint is attached to the
motion for its admission a n d a copy thereof is necessarily
served on t h e defendant, his period to answer immediately
runs from his receipt of the court order admitting the same.
Otherwise, w h e r e only a motion is filed and the same is
g r a n t e d , t h e plaintiff will be g r a n t e d t i m e to file t h e
amended or s u p p l e m e n t a l complaint, the defendant will
have to wait for service on him thereof, and consequently
he will have further time to answer.
S e c . 10. Form. — T h e R u l e s a p p l i c a b l e t o
p l e a d i n g s s h a l l a p p l y t o w r i t t e n m o t i o n s s o far a s
concerns caption, designation, signature, and other
m a t t e r s o f form. (9a)
269
R U L E 16
M O T I O N TO D I S M I S S
S e c t i o n 1. Grounds. — W i t h i n t h e t i m e for b u t
before filing the answer to the complaint or
p l e a d i n g a s s e r t i n g a claim, a m o t i o n to d i s m i s s may
be made on any of the following grounds:
(a) T h a t t h e c o u r t h a s n o j u r i s d i c t i o n o v e r t h e
p e r s o n of the d e f e n d i n g party;
(b) T h a t t h e c o u r t h a s n o j u r i s d i c t i o n o v e r t h e
subject matter of the claim;
(c) T h a t v e n u e i s i m p r o p e r l y laid;
(d) T h a t t h e p l a i n t i f f h a s n o l e g a l c a p a c i t y t o
sue;
(e) T h a t t h e r e i s a n o t h e r a c t i o n p e n d i n g
b e t w e e n t h e s a m e p a r t i e s for t h e s a m e c a u s e ;
(f) T h a t t h e c a u s e of a c t i o n is b a r r e d by a p r i o r
judgment or by the statute of limitations;
(g) T h a t t h e p l e a d i n g a s s e r t i n g t h e c l a i m s t a t e s
no cause of action;
(h) T h a t t h e c l a i m o r d e m a n d s e t f o r t h i n t h e
plaintiffs pleading has been paid, waived,
abandoned, or otherwise extinguished;
(i) T h a t t h e c l a i m o n w h i c h t h e a c t i o n i s
founded is unenforceable under the provisions of
the statute of frauds; and
(j) T h a t a c o n d i t i o n p r e c e d e n t for f i l i n g t h e
c l a i m h a s n o t b e e n c o m p l i e d w i t h , (la)
NOTES
1. A motion to dismiss u n d e r t h i s Rule differs from a
270
RULE 16 MOTION TO DISMISS SEC. 1
motion to dismiss u n d e r Rule 33 on d e m u r r e r to evidence

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

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

challenge t h e jurisdiction of t h e court over his p e r s o n by
m a k i n g a special a p p e a r a n c e t h r o u g h a motion to dismiss
b a s e d on t h e g r o u n d , e.g., of i n v a l i d i t y of s e r v i c e of
s u m m o n s , a n d by filing such motion, he will not t h e r e b y
be deemed to have s u b m i t t e d himself to t h e jurisdiction of
272
R U L E 16 MOTION TO DISMISS SEC. 1
the court. However, if t h e same motion also raised other

grounds or invoked some affirmative relief which
necessarily involves t h e exercise of the jurisdiction of t h e
court, such special appearance will be of no avail and the
p a r t y is thereby deemed to have submitted himself to the
jurisdiction of t h e court. T h u s , where t h e defendant filed
a motion to dismiss on t h e ground t h a t summons served
on him was invalid and, therefore, t h a t the court did not
acquire jurisdiction over his person, but the same motion
s e t s forth a n o t h e r ground u n d e r t h e n Art. 222 of t h e
Civil Code (lack of s h o w i n g t h a t e a r n e s t efforts w e r e
exerted to effect a compromise between members of the
same family) and prayed "for such other r e l i e f as may be
deemed "appropriate and proper," t h e reservation in said
motion t h a t defendant was making a special appearance
to contest the court's jurisdiction over his person is nullified
and s h o u l d be d i s r e g a r d e d (De Midgely vs. Ferandos,
L-34313, May 13, 1975). The same rule applied where
the defendant challenged t h e court's jurisdiction over its
person for invalidity of service of process but at the same
time raised t h e other ground of prescription in its motion
to dismiss (Republic vs. Ker & Co., Ltd., 124 Phil. 823).
5. However, in La Naval Drug Corp. vs. CA, et al.

(G.R. No. 103200, Aug. 3 1 , 1994), t h e S u p r e m e Court
decided to reexamine and abandon the foregoing doctrine.
It held t h a t while lack of jurisdiction over the person of
the d e f e n d a n t may be duly and seasonably raised, his
voluntary appearance in court without qualification is a
waiver of such defense. Furthermore, even if he challenges
the jurisdiction of the court over his person, as by reason
of absence or defective service of summons, and he also
invokes other grounds for the dismissal of the action under
Rule 16, he is not deemed to be in estoppel or to have
waived his objection to jurisdiction over his person. In
support of this new doctrine, the observation may be added
t h a t t h e defendant may after all invoke his objections
alternatively, hence he would not thereby be said to be
273
R U L E 16 REMEDIAL LAW C O M P E N D I U M SEC. 1
inconsistently challenging t h e jurisdiction of t h e court

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

jurisdiction over t h e n a t u r e of t h e action, s e p a r a t e l y from
t h e subject thereof, led to t h e elimination in t h i s Rule of
t h e former which w a s supposedly an innovative ground
in t h e 1964 Rules of Court. W h a t may have been intended
t h e r e i n w e r e c a s e s a s s i g n e d b y law t o q u a s i - j u d i c i a l
agencies, such as intra-corporate suits which were
274
exclusively vested in the Securities and Exchange

Commission, or to special courts such as tax suits which
were within t h e exclusive jurisdiction of the Court of Tax
Appeals. If so, t h i s would properly c o n s t i t u t e lack of
jurisdiction over t h e subject-matter if such cases are filed
in t h e r e g u l a r t r i a l courts. Within their respective levels,
the r e g u l a r t r i a l courts have uniform jurisdiction with
regard to t h e n a t u r e of t h e actions they may e n t e r t a i n ,
hence if t h e objection is as to the subject or object involved,
it would necessarily be on either subject-matter jurisdiction
or on venue considerations.
8. The jurisdictional grounds which may be invoked

under t h e p r e s e n t Rule are, therefore, confined to lack of
jurisdiction over t h e person of the defending p a r t y and
the s u b j e c t - m a t t e r of t h e claim. The first has already
been discussed, but it must not be overlooked t h a t the t e r m
now used is not limited to t h e defendant but applies to all
defending p a r t i e s against whom claims are asserted
through other initiatory pleadings, such as counterclaims,
cross-claims a n d third-party complaints. Jurisdiction is
obtained over t h e original defendant by service of
summons a n d over t h e other defending parties by service
of t h e p l e a d i n g c o n t a i n i n g t h e c l a i m . Also, as now
amended, t h i s Rule refers to the subject-matter of each
p a r t i c u l a r claim a n d not only to t h a t of t h e suit, as it was
under the former Rule, which thereby applied only to the
complaint.
a. Jurisdiction over the subject-matter is determined
by the allegations in t h e complaint regardless of w h e t h e r
or not t h e plaintiff is entitled to recover upon all or some
of the claims a s s e r t e d therein. The defenses asserted in
the a n s w e r or motion to dismiss are not to be considered
for t h i s purpose, otherwise t h e question would depend
e n t i r e l y u p o n t h e d e f e n d a n t (Magay vs. Estandian,
L-28975, Feb. 27, 1976).
275
b. Where a p a r t y invokes t h e jurisdiction of a court

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

sold a u n i t thereof on i n s t a l l m e n t s with reservation of
276
ownership u n t i l t h e price is fully paid, a n d t h e buyer

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

improper venue and thereafter submitted to its jurisdiction,
t h e issue of v e n u e w a s t h e r e b y waived a n d they are in
estoppel to r e p u d i a t e or question t h e proceedings in said
court (Vda. de Suan, et al. vs. Cusi, et al., L-35336,
Oct. 27, 1983).
1 1 . Objection to venue is also impliedly waived where

t h e p a r t y e n t e r s into trial, cross-examines t h e w i t n e s s e s
o f t h e a d v e r s e p a r t y a n d a d d u c e s e v i d e n c e (Paper
Industries Corp. of the Phil. vs. Samson, et al., L-30175,
Nov. 28, 1975).
12. Lack of legal capacity to sue m e a n s t h a t t h e plain-

tiff is e i t h e r not in t h e exercise of his civil r i g h t s or does
not have t h e c h a r a c t e r or r e p r e s e n t a t i o n t h a t he claims
(Lunsod vs. Ortega, 46 Phil. 664).
a. Where the plaintiff is not the real party in
i n t e r e s t , t h e ground for t h e motion to dismiss is lack of
cause of action (Casimiro vs. Roque, et al., 98 Phil. 880).
b. A foreign corporation doing b u s i n e s s in t h e
P h i l i p p i n e s w i t h o u t t h e requisite license to do so c a n n o t
m a i n t a i n any suit in t h e Philippines (Sec. 69, Act 1459,
now Sec. 133, Corporation Code; Marshall-Wells Co. vs.
Elser & Co., 48 Phil. 70; Atlantic Mutual Insurance Co.,
Inc. vs. Cebu Stevedoring Co., Inc., L-18961, Aug. 31,
1966), b u t not w h e r e t h e case involves a m e r e isolated
t r a n s a c t i o n (Aetna Casualty & Surety Co., Inc. vs. Pacific
Star Line, L-26809, Dec. 29, 1977; Hathibhai Bulakhidas
vs. Navarro, et al, L-49695, April 7, 1986). B u t if t h e
said foreign corporation is sued in our courts, it may, by
writ of prohibition, seek relief a g a i n s t the wrongful
a s s u m p t i o n of jurisdiction a n d its petition therefor need
not a v e r its legal capacity to i n s t i t u t e said proceeding
(Time, Inc. vs. Reyes, etc., et al, supra).
c. The issue of p l a i n t i f f s lack of legal capacity to sue
c a n n o t be raised for t h e first time on a p p e a l w h e r e t h e
278
R U L E 16 MOTION TO DISMISS SEC. 1
defendant dealt with the former as a p a r t y in the

proceedings below (University of Pangasinan Faculty
Union vs. University of Pangasinan, et al., G.R. No. 63122
Feb. 21, 1984).
13. The pendency of a n o t h e r action, or litis pen-

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

a previous final j u d g m e n t in a case prosecuted between
279
the same p a r t i e s involving t h e same subject-matter and

cause of action (Roman Catholic Archbishop vs. Director
of Lands, 35 Phil. 339). The t r i a l court can t a k e judicial
notice of the finality of a j u d g m e n t previously decided by
it and the fact t h a t the same case is now pending before
it, t h e defeated p a r t y having refiled t h e s a m e (Baguiao
vs. Jalagat, et al., L-28100, Nov. 29, 1971). The principle
of res judicata a p p l i e s to all c a s e s a n d p r o c e e d i n g s ,
including land registration and cadastral proceedings
(Republic vs. Estenzo, L-35376, Sept. 11, 1980). See
Secs. 47 a n d 48, Rule 39 and t h e notes t h e r e u n d e r .
15. The defense of prescription is waived a n d cannot

be considered on a p p e a l if not raised in t h e t r i a l court
(Ramos vs. Osorio, L-27306, April 29, 1971; Director
of Lands vs. Dano, et al., L-31749, Feb. 21, 1980).
H o w e v e r , if t h e a l l e g a t i o n s of t h e c o m p l a i n t , or t h e
evidence p r e s e n t e d , clearly indicate t h a t t h e action h a s
p r e s c r i b e d , o r w h e r e t h e r e i s n o i s s u e i n fact a s t o
prescription, t h e defense of prescription is not d e e m e d
waived by defendant's failure to allege t h e s a m e (Chua
Lamko vs. Dioso, 97 Phil. 821; Garcia vs. Mathis, supra).
Generally, estoppel a n d prescription c a n n o t be invoked
a g a i n s t t h e S t a t e (Republic vs. CA, et al., L-45202,
Sept. 11, 1980). En contra, note t h a t t h e r u l e in criminal
cases is different, as discussed in Sec. 9, Rule 117.
16. A motion to dismiss on t h e ground of prescription

will be given due course only if t h e complaint shows on its
face t h a t t h e action h a s a l r e a d y p r e s c r i b e d (Sison vs.
McQuaid, 94 Phil. 201; Francisco, et al. vs. Robles, et al,
94 Phil. 1035; Aznar III, et al. vs. Bemad, etc., et al,
G.R. No. 81190, May 9, 1988). If it does not so a p p e a r ,
the determination of the motion to dismiss m u s t be deferred
u n t i l t r i a l (Cordova vs. Cordova, 102 Phil. 1182; Seno, et
al. vs. Mangubat, et al., L-44339, Dec. 2, 1987).
See, however, Sec. 3 of t h i s Rule which now prohibits
deferment of t h e resolution of t h e motion.
280
RULE 16 MOTION TO DISMISS
17. W h e n t h e g r o u n d for d i s m i s s a l i s t h a t t h e
c o m p l a i n t s t a t e s no c a u s e of action, such fact can be
determined only from t h e facts alleged in the complaint
(Mindanao Realty Corp. vs. Kintanar, et al., L-17152,
Nov. 30, 1962) and from no other (Marabilles vs. Quito,
100 Phil. 64; Boncato vs. Siason, et al., L-29094, Sept. 5,
1985), and the court cannot consider other m a t t e r s aliunde
(Salvador vs. Frio, L-25352, May 29, 1970). This implies
t h a t t h e issue m u s t be passed upon on t h e basis of the
allegations a s s u m i n g t h e m to be t r u e and t h e court cannot
inquire into t h e t r u t h of t h e allegations and declare t h e m
to be false; otherwise, it would be a procedural e r r o r and
a d e n i a l of d u e p r o c e s s to t h e plaintiff (Ventura vs.
Bernabe, L-26769, April 30, 1971; Galeon vs. Galeon, et
al., L-30380, Feb. 28, 1973). The exception was provided
by t h e former Sec. 2, Rule 9, i.e., w h e r e t h e motion to
dismiss on t h i s ground could be filed during the trial, in
which case t h e evidence presented was to be considered.
Also, it h a s been held t h a t u n d e r this ground the trial
c o u r t c a n c o n s i d e r all t h e p l e a d i n g s filed, i n c l u d i n g
annexes, motions and t h e evidence on record (Marcopper
Mining Corp. vs. Garcia, G.R. No. 55935, July 30, 1986),
i n c l u d i n g d o c u m e n t a r y evidence s t i p u l a t e d upon a n d
which is before the court (Santiago vs. Pioneer Savings
& Loan Bank, et al., G.R. No. 77502, Jan. 15, 1983).
However, it h a s likewise been held t h a t even if the
complaint stated a valid cause of action, a motion to dismiss
for insufficiency of c a u s e of action will be g r a n t e d if
documentary evidence admitted by stipulations discloses
facts sufficient to defeat t h e claim and enables the court
to go beyond t h e disclosures in the complaint. In such
instances, the court can dismiss a complaint on this ground
e v e n w i t h o u t a h e a r i n g , by t a k i n g i n t o a c c o u n t t h e
discussions in said motion a n d t h e opposition t h e r e t o
(Tan vs. Director of Forestry, et al., L-24548, Oct. 27, 1983).
This controversy which a p p e a r e d to have been due to
confusion over t h e s i t u a t i o n s w h e r e i n t h e c o m p l a i n t
281
does n o t allege a sufficient c a u s e of a c t i o n a n d t h a t

wherein, at t h e trial, t h e evidence does not s u s t a i n the
cause of action alleged, h a s been clarified by incorporating
said Sec. 2 in an a m e n d e d form as t h e p r e s e n t Sec. 1 of
Rule 9. Refer to said new provision a n d t h e notes
thereunder.
a. Courts should exercise utmost care and
circumspection in passing upon motions to dismiss
based on t h i s ground (Militante us. Antero, et al., L-27940,
June 10, 1971). T h e t e s t is w h e t h e r , a s s u m i n g t h e
a l l e g a t i o n s of fact in t h e c o m p l a i n t , a valid j u d g m e n t
could be r e n d e r e d in accordance w i t h t h e p r a y e r in t h e
complaint. W h e r e t h e allegations a r e sufficient b u t t h e
veracity of t h e facts a r e assailed, t h e motion to dismiss
s h o u l d be d e n i e d (Suyom, et al. us. Collantes, et al.,
L-40337, Feb. 27, 1976).
b. W h e r e t h e facts alleged to m a k e out t h e principal
cause of action a n d relief a r e insufficient, t h e case should
be dismissed a n d plaintiff cannot rely on ancillary m a t t e r s
in t h e c o m p l a i n t to m a k e out a c a u s e of action. T h u s ,
w h e n t h e action is for cancellation of t h e d e f e n d a n t ' s title
b u t t h e allegations t h e r e i n a r e i n a d e q u a t e , plaintiff cannot
lean on his allegations of supposed i m p r o v e m e n t s made
on t h e land as t h e s e a r e p u r e l y ancillary to t h e principal
relief s o u g h t (Gabila us. Barriaga, L 28917, Sept. 30,
1971). N e i t h e r can such defect be cured by t h e allegations
in a c o m p l a i n t in i n t e r v e n t i o n filed by a t h i r d p a r t y
(Nacar us. Nistal, et al., L-33006, Dec. 8, 1982).
c. W h e r e a complaint does not contain all t h e facts
c o n s t i t u t i n g t h e p l a i n t i f f s cause of action, it is subject to
a motion to dismiss. However, if t h e d e f e n d a n t p e r m i t s
evidence to be introduced, w i t h o u t objection, which
supplies the necessary allegation in such defective
complaint, this evidence cures t h e defects of such complaint
which m a y no longer be dismissed on t h a t account and
t h e court s h a l l a w a r d such relief as is c o n s i s t e n t w i t h the
282
RULE 16 MOTIONS TO DISMISS SEC. 1
case m a d e out by t h e pleadings and the evidence (Pascua

us. CA, et al., G.R. No. 76851, Mar. 19, 1990).
18. Unlike a motion to dismiss on t h e ground t h a t

the complaint s t a t e s no cause of action, a motion invoking
the S t a t u t e of F r a u d s may be filed even if t h e absence of
a c a u s e of a c t i o n does not a p p e a r on t h e face of t h e
complaint. Such absence may be proved during the
hearing of t h e motion to dismiss on said ground (Yuvienco,
et al. us. Dacuycuy, etc., et al., G.R. No. 55048, May 27,
1981). For t h e S t a t u t e of F r a u d s , see Arts. 1403(2), 1405
and 1406, Civil Code.
19. The former Rule did not provide specific grounds

for a motion to dismiss where t h e action, was filed without
the plaintiff having exhausted all administrative remedies
before going to court, a basic rule of political law which is
accepted in adjective law. Similarly, it did not have any
such provision, because it was not t h e n contemplated, for
t h e s i t u a t i o n w h e r e p r i o r r e f e r r a l for c o n c i l i a t i o n
proceedings was required by the Katarungang
P a m b a r a n g a y Law (P.D. 1508), and l a t e r by t h e Local
Government Code (R.A. 7160), before the case may be filed
i n c o u r t a n d t h e p l a i n t i f f did not comply w i t h s u c h
prerequisite. The remedy t h e n was to authorize a motion
to dismiss such action for failure to state a cause of action
or even for p r e m a t u r i t y , d e s p i t e t h e d u b i e t y of s u c h
grounds.
On the other hand, t h e n Sec. l(j) of said Rule provided
as a ground for a motion to dismiss the fact t h a t the suit
was between m e m b e r s of t h e same family and no e a r n e s t
efforts t o w a r d s a compromise have been m a d e , which
provision was actually t a k e n from Art. 222 of the Civil
Code. These t h r e e s i t u a t i o n s , and other similar
contingencies, are now embraced in and assailable under
the new ground for dismissal provided in the revised Rule,
t h a t is, non-compliance with a condition precedent for the
filing of t h e claim.
283
Save for t h e change in terminology, therefore, t h e

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

c o u r t w i t h o u t a n y i n v o c a t i o n o f P . D . 1508 a n d t h e
j u d g m e n t t h e r e i n had become executory, but said
defendant thereafter sought t h e a n n u l m e n t of the decision
for alleged lack of jurisdiction, the same was denied under
the doctrine of estoppel by laches as held in Tijam vs.
Sibonghanoy (L-21450, April 15, 1968). Non-compliance
with P.D. 1508 only r e s u l t s in lack of cause of action or
p r e m a t u r i t y (see Vda. de Borromeo vs. Pogoy, G.R.
No. 63277, Nov. 29, 1983; Peregrina, et al. vs. Panis, et
al, G.R. No. 56011, Oct. 31, 1984). The s i t u a t i o n is
analogous to non-exhaustion of administrative remedies
(Gone, et al. vs. District Engineer, et al, supra) or, as
formerly framed, t h e lack of e a r n e s t efforts to compromise
suits between family m e m b e r s (then Sec. lfjj, Rule 16;
Peregrina, et al. vs. Panis, et al, supra; cf Agbayani vs.
Belen, et al, G.R. No. 65629, Nov. 24, 1986).
This objection, not being jurisdictional in n a t u r e , is
deemed waived if not raised in a motion to dismiss (Ebol
vs. Amin, et al, G.R. No. 70237, Mar. 18, 1985; Gonzales
vs. CA, et al, G.R. Nos. 59495-97, June 26, 1987; cf.
Millare vs. Hernando, et al, G.R. No. 55480, June 30,
1987; Sanchez vs. Tupas, et al, G.R. No. 76690, Feb. 29,
1988).
The complaint may be dismissed where the
complainant, after due notice, wilfully fails to appear on
the d a t e s e t for mediation, conciliation or a r b i t r a t i o n .
Upon a s i m i l a r failure of r e s p o n d e n t to a p p e a r , any
compulsory counterclaim he has made shall be dismissed
and may not be filed in court and complainant shall be
issued a certification for filing his action in the proper
c o u r t , g o v e r n m e n t a g e n c y or office (Alinsugay vs.
Sagampang, et al, G.R. No. 69334, July 28, 1986).
c. T h e fact t h a t t h e s u i t is exclusively b e t w e e n
members of t h e same family is a ground for dismissal if no
e a r n e s t efforts at compromise had been made (Art. 222,
Civil Code; Art. 151, Family Code). This ground is,
285
t h e r e f o r e , n o t a v a i l a b l e w h e r e a c o m p r o m i s e of t h e
controversy is not p e r m i t t e d by law, as w h e r e it involves
civil s t a t u s , validity of m a r r i a g e or legal separation,
grounds for legal separation, future support, jurisdiction
and future legitime (Art. 2035, Civil Code). The same
r u l e a p p l i e s even if t h e complaint a s k s for s u p p o r t in
a r r e a r s , which is p e r m i t t e d to be compromised, b u t it also
seeks future s u p p o r t (Mendoza vs. CA, et al., L-23102,
April 24, 1967). As to who a r e considered m e m b e r s of a
"family," A r t . 2 1 7 , Civil Code, p r o v i d e d t h a t family
relations shall include those (1) between h u s b a n d and wife;
(2) b e t w e e n p a r e n t a n d child; (3) among o t h e r a s c e n d a n t s
a n d t h e i r d e s c e n d a n t s ; and (4) among b r o t h e r s a n d sisters
(Gayon vs. Gayon, L-28394, Nov. 26, 1970). Art. 150 of
t h e F a m i l y Code a m e n d e d t h e foregoing e n u m e r a t i o n
r e g a r d i n g siblings, to specify " w h e t h e r of t h e full or half-
blood."
F a i l u r e to allege in t h e complaint t h a t e a r n e s t efforts
at compromise h a d been made by t h e plaintiff before filing
t h e action is not a ground for a motion to dismiss if one of
t h e p a r t i e s is a s t r a n g e r (Magbaleta vs. Gonong, L-44903,
April 25, 1977) or w h e r e t h e s u i t is b e t w e e n collateral
relatives who a r e not b r o t h e r s or s i s t e r s and, therefore,
not m e m b e r s of t h e s a m e family (Mendez vs. Bionson,
L-32159 Oct. 28, 1977).
2 0 . The doctrine of forum non conveniens is not a

g r o u n d for a m o t i o n t o d i s m i s s u n d e r t h i s R u l e .
Conceptually, t h i s m e a n s t h a t a court, usually in conflicts-
of-law cases, m a y refuse impositions on its jurisdiction
w h e r e it is not t h e most convenient or available forum
a n d t h e p a r t i e s a r e not precluded from seeking r e m e d i e s
elsewhere (Bank of America, etc. vs. CA, et al., G.R. No.
120135, Mar. 31, 2003). M o r e o v e r , t h e p r o p r i e t y of
d i s m i s s i n g a case on t h i s p r i n c i p l e r e q u i r e s a f a c t u a l
d e t e r m i n a t i o n , hence it is more properly considered as a
m a t t e r of defense. The t r i a l court, consequently, h a s t h e
discretion to a b s t a i n from a s s u m i n g jurisdiction over the
286
the case on t h i s ground (Raytheon International, Inc. vs.

Rouzie, Jr., G.R. No. 162894, Feb. 26, 2008).
T h u s , for instance, where t h e defendant's petition for
review in t h e Court of Tax Appeals was dismissed nolle
prosequi a n d t h e Government instituted the tax collection
suit in t h e Regional Trial Court as a consequence thereof,
but d u r i n g t h e pendency of said tax collection suit, the
d e f e n d a n t ' s p e t i t i o n for r e v i e w in t h e C o u r t of Tax
Appeals was reinstated, said defendant can t h e n move for
dismissal of t h e t a x collection suit in the Regional Trial
Court on t h e ground of litis pendentia even if he had
already filed his answer t h e r e i n .
2 1 . S e c t i o n 1 of t h i s a m e n d e d Rule lays down a

b r a n c h of t h e so-called " o m n i b u s motion r u l e " which
provides t h a t defenses or objections not pleaded either in
a motion to dismiss or in t h e answer are deemed waived,
except the objections specified therein which are considered
not waivable.
a. Lack of jurisdiction over t h e subject m a t t e r may

be invoked as a defense at any stage of the action, even if
no such objection was raised in a motion to dismiss or in
the answer, a n d it may be so claimed even after the trial
had commenced (Ker & Co. vs. Court of Tax Appeals, et
al, L-12396, Jan. 31, 1962).
b. It will readily be observed t h a t in said Section 1,

three other exceptions have been expressly added,
namely, t h a t (1) t h e r e is a n o t h e r action pending between
the same p a r t i e s for the same cause (litis pendentia), (2)
the proceeding is barred by a prior judgment (res judicata),
a n d (3) t h e c a s e w a s e x t i n g u i s e d b y t h e s t a t u t e o f
limitations (prescription). These additional exceptions
were not explicitly provided for in the 1964 Rules of Court,
particularly Section 2 of Rule 9 thereof. Notably, it is
clearly stated t h a t any of these additional exceptions may
appear in "the pleadings or the evidence of record."
287
c. W h e r e any of t h e four defenses a r e p r e s e n t in

t h e case, Section 1 directs t h a t t h e court shall dismiss t h e
claim. If, despite such directive, t h e court shall fail to do
so, t h e logical a n d speedy remedy of t h e defendant is to
move to dismiss t h e claim r e g a r d l e s s of t h e s t a t u s of t h e
initiatory of responsive s t a t u s of t h e pleadings vis-a-vis
e a c h o t h e r . M a n d a m u s to compel such d i s m i s s a l may
t h e r e a f t e r be availed of as t h e successive remedy should
t h e c o u r t b e r e c a l c i t r a n t d e s p i t e t h e fact t h a t s u c h
dismissal is its m a n d a t o r y duty. This is aside from such
a d m i n i s t r a t i v e s a n c t i o n s a s m a y b e w a r r a n t e d b y its
nonfeasance in a m i n i s t e r i a l function.
d. In Matela vs. Chua Tay (L-16796, May 30, 1962),

p e t i t i o n e r challenged t h e propriety of a motion to dismiss
on t h e ground of litis pendentia which w a s p r e s e n t e d after
t h e m o v a n t ' s a n s w e r t o t h e complaint h a d a l r e a d y been
filed, hence t h e d i s m i s s a l of t h e case o b t a i n e d t h e r e b y
should be s e t aside. The S u p r e m e Court d i s r e g a r d e d t h a t
contention since both t h e a n s w e r (which w a s filed earlier)
a n d t h e motion to dismiss "contained t h e defense and/or
ground of p e n d e n c y of a n o t h e r action," a n d all t h e
r e q u i s i t e s of res judicata w e r e p r e s e n t . With the
aforementioned a m e n d m e n t of Section 1 of this Rule which
now c o n s i d e r s litis pendentia as an e x c e p t i o n to t h e
o m n i b u s m o t i o n r u l e , t h i s c o n t r o v e r s y n e e d n o longer
arise.
e. Quiaoit vs. Consolacion, et al. (L-41824, Sept.

30, 1976) explained t h e d i c t u m t h a t a motion to dismiss
may also be allowed for some special reasons on g r o u n d s
o t h e r t h a n lack of cause of action or lack of jurisdiction
over t h e subject-matter, even after t r i a l of t h e case had
a l r e a d y b e g u n b u t evidence c o n s t i t u t i n g a g r o u n d for
dismissal of t h e case is discovered d u r i n g t h a t t r i a l . The
r e a s o n given is t h a t said motion serves to s u p p l e m e n t t h e
a v e r m e n t s of t h e defendant's a n s w e r a n d to adjust t h e
issues to the plaintiffs testimony. This ruling was
288
reiterated in Ruiz, J r . vs. CA, et al. (G.R. No. 101566,

Mar. 26, 1993).
f. T h e a m e n d m e n t of S e c t i o n 1 of t h i s R u l e
providing t h a t t h e exceptions to the omnibus motion rule
m a y be g l e a n e d from t h e e v i d e n c e on record (which
includes t h e case where t r i a l h a s begun) forestalls any
challenge on t h a t score. Also, the liberalization of other
former holdings on belated motions to dismiss t h u s affirm
t h a t procedural rules, as essential tools for the obtention
of justice, should not be literally constricted by petrified
logic in t h e i r application. In any event, where the motion
to dismiss falls outside t h e g e n e r a l rule on allowable
grounds and/or time limits, b u t invokes judicial discretion
due to special reasons, as earlier noted, the better practice
is to move for leave of court therefor so t h a t the situation
may be presented and t h e t r i b u n a l p u t on guard.
22. An action cannot be dismissed on the ground t h a t
the complaint is vague or indefinite. The remedy of the
defendant is to move for a bill of particulars or avail of the
p r o p e r mode of discovery (Galeon vs. Caleon, et al.,
L-30380, Feb. 28, 1973).
2 3 . Courts do not e n t e r t a i n moot questions or issues,
t h a t is, t h o s e w h i c h c e a s e t o p r e s e n t a j u s t i c i a b l e
controversy such t h a t a resolution thereof would be of no
practical use or value and no legal relief is needed or called
for.
However, courts will still decide cases, otherwise moot
and academic, If (1) t h e r e is a grave violation of t h e
Constitution; (2) an exceptional character of the situation
and t h e p a r a m o u n t public i n t e r e s t is involved; (3) t h e
constitutional issue raised requires formulation of
controlling principles to guide the bench, the bar and the
public, and (4) the case is capable of repetition yet evading
review (Lu vs. Lu Ym Sr., et al. G.R. No. 153690, Aug. 26,
2008, which other cases jointly decided).
289
S e c . 2. Hearing of motion. — At t h e h e a r i n g of
the motion, the parties shall submit their arguments
on the questions of law and their evidence on the
q u e s t i o n s o f fact i n v o l v e d e x c e p t t h o s e n o t a v a i l a b l e
at that time. Should the case go to trial, the
evidence presented during the hearing shall
automatically be part of the evidence of the party
p r e s e n t i n g t h e s a m e , (n)
NOTES
1. T h i s new provision of t h e Rule i n t r o d u c e s two

i m p o r t a n t changes, i.e., (1) at t h e h e a r i n g of t h e motion,
t h e p a r t i e s shall s u b m i t all a r g u m e n t s a n d evidence t h e n
a v a i l a b l e , a n d (2) t h e e v i d e n c e p r e s e n t e d s h a l l
automatically c o n s t i t u t e p a r t of t h e evidence at t h e t r i a l
of t h e p a r t y w h o p r e s e n t e d t h e s a m e . It will also be
recalled t h a t in accordance with Rule 15, such motion shall
be in w r i t i n g (Sec. 2) a n d t h a t t h e r e m u s t be a h e a r i n g
t h e r e o n (Sec. 4).
The obvious purpose of t h e s e a m e n d m e n t s is to
avoid u n n e c e s s a r y delay in t h e t r i a l court, a n d to have a
sufficient f r a m e o f r e f e r e n c e s h o u l d t h e t r i a l c o u r t ' s
disposition of t h e motion be questioned in a h i g h e r court.
2. U n d e r t h e former Rule, it w a s held t h a t t h e

absence of a formal h e a r i n g on a motion to dismiss which
w a s g r a n t e d does not constitute reversible e r r o r w h e r e t h e
motion is g r o u n d e d on lack of c a u s e of action a n d t h e
existence or lack of it is d e t e r m i n a b l e by reference to t h e
facts alleged in t h e challenged pleading. The issue raised
in t h e motion h a v i n g been fully discussed t h e r e i n a n d in
t h e opposition thereto, oral a r g u m e n t s on t h e motion would
be an u n n e c e s s a r y ceremony. The i n t e n d m e n t of t h e law
in r e q u i r i n g a h e a r i n g on t h e motion, t h a t is, to avoid
unfair s u r p r i s e s a n d to enable t h e a d v e r s e p a r t y to meet
t h e a r g u m e n t s in t h e motion, have been sufficiently met
u n d e r t h e foregoing c i r c u m s t a n c e s (Castillo, et al. vs. CA,
290
et al., G.R. No. 52008, Mar. 25, 1988). It is believed t h a t

such ruling may still be favorably considered u n d e r the
new R u l e s u n d e r t h e s a m e c i r c u m s t a n c e s o b t a i n i n g
therein.
S e c . 3. Resolution of motion. — A f t e r t h e h e a r i n g ,
the c o u r t m a y dismiss t h e action or claim, deny the
motion or order the amendment of the pleading.
The court shall not defer the resolution of the
m o t i o n for t h e r e a s o n t h a t t h e g r o u n d r e l i e d u p o n
is not indubitable.
In every case, the resolution shall state clearly
a n d d i s t i n c t l y t h e r e a s o n s t h e r e f o r . (3a)
NOTES
1. A m e n d a t o r y of t h e previous provision on these

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

t h e judge did not have t h e necessary facts to rule upon
t h e capacity to s u e of a foreign corporation; a n d t h e y
reinforce t h e holding in Foster Parents Plan Interna-
tional/Bicol, et al. us. Demetriou, et al. (G.R. No. 74077,
J u l y 7, 1986) t h a t it was gross e r r o r to defer resolution of
the motion w h e r e t h e grounds were lack of jurisdiction or
lack of cause of action since the allegations of t h e complaint
are deemed admitted and the issue can be resolved without
w a i t i n g for t r i a l on t h e m e r i t s .
2. Where a h e a r i n g was held and d o c u m e n t a r y

e v i d e n c e w a s p r e s e n t e d b y t h e d e f e n d a n t , not o n h i s
motion to dismiss b u t a g a i n s t t h e p l a i n t i f f s application
for a w r i t of p r e l i m i n a r y injunction, b u t said evidence
w a s a d m i t t e d b y t h e plaintiff, s u c h e v i d e n c e c a n b e
considered in resolving t h e motion to dismiss (Santiago
us. Pioneer Savings & Loan Bank, et al., G.R. No. 77502,
Jan. 15, 1988).
3. Adopting previous doctrinal injunctions, such as

t h a t in Continental Bank vs. Tiangco (G.R. No. 50480,
Dec. 14, 1979), it is now specifically required by this section
t h a t the resolution on the motion shall clearly and
distinctly s t a t e t h e r e a s o n s therefor. This proscribes t h e
common practice of perfunctorily dismissing t h e motion
"for lack of merit." Such cavalier dispositions can often
pose difficulty a n d m i s u n d e r s t a n d i n g on t h e p a r t of t h e
aggrieved p a r t y in t a k i n g recourse therefrom a n d likewise
o n t h e h i g h e r c o u r t called u p o n t o resolve t h e s a m e ,
usually on c e r t i o r a r i .
4. An o r d e r d e n y i n g a motion to d i s m i s s is
i n t e r l o c u t o r y a n d n o t a p p e a l a b l e (Harrison Foundry
& Machinery, et al. vs. Harrison Foundry Workers
Association, et al., L-18432, June 19, 1963), b u t an order
g r a n t i n g a m o t i o n to d i s m i s s is final a n d a p p e a l a b l e
(Monares vs. CNS Enterprises, 105 Phil. 1333 fUnrep.J).
However, if t h e o r d e r of dismissal is not an adjudication
292
on t h e merits, as where t h e venue is improperly laid, t h a t

the plaintiff has no legal capacity to sue, litis pendentia,
t h a t t h e complaint s t a t e s no cause of action or t h a t a
c o n d i t i o n p r e c e d e n t for filing t h e s u i t h a s not b e e n
complied with, such dismissal is not a bar to another action
when t h e circumstances change and w a r r a n t the refiling
and prosecution of t h e same.
5. While an order denying a motion to dismiss is

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

motion of the defendant, because the original summons
was wrongfully served or t h e r e was failure of service.
293
The court can instead issue an alias summons for service

on the d e f e n d a n t (Far Corp. vs. Francisco, etc., et al.,
G.R. No. 57218, Dec. 12, 1986).
S e c . 4. Time to plead. — If t h e m o t i o n is d e n i e d ,
t h e m o v a n t s h a l l file h i s a n s w e r w i t h i n t h e b a l a n c e
of the period prescribed by Rule 11 to which he
was entitled at the time of serving his motion, but
n o t l e s s t h a n five (5) d a y s i n a n y e v e n t , c o m p u t e d
from his receipt of the notice of the denial. If
t h e p l e a d i n g i s o r d e r e d t o b e a m e n d e d , h e s h a l l file
his answer within the period prescribed by Rule 11
counted from service of the a m e n d e d pleading,
u n l e s s t h e c o u r t p r o v i d e s a l o n g e r p e r i o d . (4a)
NOTES
1. In t h e 1964 Rules of Court, Sec. 4 of t h i s Rule

provided t h a t w h e r e t h e motion to dismiss is denied or
resolution thereof is deferred, the defendant had the
e n t i r e r e g l e m e n t a r y period all over a g a i n w i t h i n which to
file his a n s w e r , reckoned from his receipt of t h e court's
order, u n l e s s o t h e r w i s e provided by said c o u r t . P r i o r
t h e r e t o , t h e rule w a s t h a t t h e filing of a motion to dismiss
only s u s p e n d e d t h e r u n n i n g of t h e r e g l e m e n t a r y period
and, upon its denial, t h e d e f e n d a n t h a d only t h e balance
of t h e r e g l e m e n t a r y period within which to file his a n s w e r .
This a m e n d e d section e n u n c i a t e s a change in policy and
revives in p a r t t h e old practice of g r a n t i n g t h e d e f e n d a n t
only t h e balance of t h e r e g l e m e n t a r y period to which he
was e n t i t l e d at t h e time he filed his motion to dismiss,
counted from his receipt of t h e denial order. The s a m e
rule of g r a n t i n g only t h e balance of t h e period is followed
w h e r e t h e court, i n s t e a d of denying t h e motion to dismiss,
o r d e r s t h e a m e n d m e n t of t h e pleading challenged by his
motion, in which case t h e balance of t h e period to a n s w e r
r u n s from his receipt of t h e a m e n d e d pleading.
294
However, in order t h a t t h e defendant may at least

not be unduly denied the opportunity to file his responsive
pleading, in t h e first instance he shall be allowed not less
t h a n 5 days to do so where the balance of the reglementary
period is less t h a n t h a t . In t h e second instance, the court
may provide a longer period u n d e r t h e same contingency.
2. When t h e period for filing t h e a n s w e r h a s been

suspended, as by defendant's filing of a motion for a bill
of p a r t i c u l a r s , a motion to dismiss may thereafter be filed
within t h e r e m a i n i n g period to file the answer since t h e
time to file the latter is coterminous with t h a t for the former
(Dumanan, et al. vs. Butuan City Rural Bank, et al.,
L-27675, Dec. 15, 1982).
S e c . 5. Effect of dismissal. — S u b j e c t to t h e r i g h t
of appeal, an order granting a motion to dismiss
b a s e d on p a r a g r a p h s (f)» (h) a n d (i) of s e c t i o n 1
h e r e o f s h a l l bar t h e r e f i l i n g o f t h e s a m e a c t i o n o r
c l a i m , (n)
NOTES
1. The action cannot be refiled if it was dismissed

on any of these grounds: (a) res judicata, (b) prescription,
(c) e x t i n g u i s h m e n t o f t h e c l a i m o r d e m a n d , a n d
(d) unenforceability under the S t a t u t e of F r a u d s .
2. On the m a t t e r of prescription, if w h a t is referred
to is t h a t t h e cause of action is b a r r e d by t h e s t a t u t e
of l i m i t a t i o n s , t h a t is, t h a t t h e action h a s prescribed
(Arts. 1139 to 1155, Civil Code), t h e motion to dismiss
shall be grounded on par. (f) of Sec. 1. If what is involved
is the fact t h a t the ownership or other real rights claimed
have prescribed, or a case of extinctive prescription is
involved (Arts. 1117 to 1138, Civil Code), then the ground
for the motion to dismiss should properly be based on
par. (h) of Sec. 1 since the plaintiffs claim or demand has
been extinguished.
295
S e c . 6. Pleading grounds as affirmative defenses. —

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

but t h e ground relied upon by him was not definitely
resolved by t h e court, i.e., where resolution thereon was
deferred as t h e n allowed, s u c h g r o u n d could still be
averred as an affirmative defense in the answer.
2. U n d e r t h e p r e s e n t amended section, if no motion

to dismiss had been filed, any of the grounds for dismissal,
including improper venue, may be pleaded as affirmative
defenses and preliminarily heard in the discretion of he
court. The provisions of Sec. 4, Rule 4 under the 1964
Rules o f C o u r t , w h i c h r e q u i r e d t h a t i m p r o p e r v e n u e
should be raised in a motion to dismiss otherwise it is
deemed waived, has been eliminated in the present
revision.
Also, t h e ruling in the aforecited Clavano case should
be deemed modified by eliminating therefrom the reference
to t h e ground of failure to s t a t e a cause of action, since
t h a t exception w a s based on t h e former provisions of
Sec. 2 of Rule 9 which, as earlier explained, has been
deleted and r e p h r a s e d in Sec. 1 of the same Rule.
3. The second p a r a g r a p h of t h i s section has now
clarified the effect of t h e dismissal of the complaint upon
a counterclaim duly pleaded in the action.
4. A motion to dismiss is not a responsive pleading,
hence the filing thereof does not preclude the plaintiff from
doing w h a t he can lawfully do before the defendant
files his answer, i.e., amend his complaint (Rodriguez vs.
Fernan, L-15143, Nov. 29, 1961; Soledad vs. Mamangun,
L-17988, May 30, 1963) and admission of such amended
complaint may be compelled by m a n d a m u s (Republic vs.
Ilao, L-16667, Jan. 30, 1962).
5. An order granting a motion to dismiss, rendered
after the death of the plaintiff which was duly reported to
the court in a motion to substitute the deceased by his
heirs but before substitution was ordered, is invalid. The
297
right to t h e property involved was vested in t h e heirs upon

t h e d e a t h of t h e i r predecessor without t h e necessity for a
declaration of heirs, hence such order g r a n t i n g t h e motion
to dismiss denies t h e m the right to be substituted as parties
in t h e case without their day in court (Bonilla vs. Barcena,
et al., L-41715, June 18, 1976).
6. U n d e r t h i s a m e n d e d section, any of t h e grounds

for dismissal provided for in this Rule, may be alleged as
affirmative defenses and a p r e l i m i n a r y h e a r i n g may be
h a d t h e r e o n if no motion to dismiss on any of said g r o u n d s
had been filed and resolved. Sec. 5(b) of Rule 6 e n u m e r a t e s
some affirmative defenses such as fraud, illegality a n d
estoppel, a n d j u r i s p r u d e n c e h a s also provided ultra vires
acts a n d u n c o n s t i t u t i o n a l i t y of t h e s t a t u t e involved as
additional affirmative defenses. Since t h e s e defenses and
o t h e r s by way of confession and avoidance a r e not among
t h e g r o u n d s for a motion to dismiss u n d e r Rule 16, while
t h e s a m e may be alleged as affirmative defenses to be
proved as such d u r i n g t h e trial, it would not be proper to
have a preliminary hearing thereon under the
c i r c u m s t a n c e s a n d for t h e p u r p o s e c o n t e m p l a t e d in this
section.
The further a m e n d m e n t emphasizes t h a t the
p r e l i m i n a r y h e a r i n g a u t h o r i z e d t h e r e i n is not m a n d a t o r y ,
since t h e g r a n t thereof may be h a d in the discretion of
the court (246 Corporation, etc. vs. Daway, etc., et al.,
G.R. No. 157216, Nov. 20, 2003).
298
RULE 17
D I S M I S S A L OF A C T I O N S
S e c t i o n 1. Dismissal upon notice by plaintiff. — A

complaint may be dismissed by the plaintiff by
filing a notice of d i s m i s s a l at any time before
s e r v i c e of t h e a n s w e r or of a m o t i o n for s u m m a r y
j u d g m e n t . U p o n s u c h n o t i c e b e i n g filed, t h e c o u r t
shall issue an order confirming the dismissal.
Unless otherwise stated in the notice, the dismissal
is w i t h o u t prejudice, except that a notice operates
a s a n a d j u d i c a t i o n u p o n t h e m e r i t s w h e n filed b y a
plaintiff w h o has once dismissed in a competent
court an action based on or including the same
claim, ( l a )
NOTES
1. The procedure u n d e r the former Sec. 1 of this

Rule has been maintained, but with the clarification t h a t
when the notice of dismissal is filed by the plaintiff, t h e
court shall issue t h e corresponding order confirming the
d i s m i s s a l . T h i s s e t t l e s t h e former m i s u n d e r s t a n d i n g
regarding t h e date when such dismissal became execu-
tory since t h e r e was t h e n no such provision for a court
order which, being final in n a t u r e , would r e q u i r e t h e
corresponding e n t r y .
2. U n d e r this section, dismissal is effected not by
motion but by mere notice of dismissal which is a m a t t e r
of r i g h t before t h e d e f e n d a n t has a n s w e r e d or moved
for a s u m m a r y j u d g m e n t . Such d i s m i s s a l is w i t h o u t
prejudice, except: (a) w h e r e the notice of dismissal so
provides, (b) where the plaintiff has previously dismissed
the same case in a court of competent jurisdiction, and
(c) even where t h e notice of dismissal does not provide
t h a t it is with prejudice but it is premised on the fact of
299
p a y m e n t by t h e d e f e n d a n t of t h e claim involved (see

Serrano vs. Cabrera, 93 Phil. 774).
The two-dismissal rule requires, however, t h a t both
dismissals a r e g r a n t e d by a court of competent jurisdic-
tion.
3. To be more precise, however, w h a t c a u s e s t h e
loss by a plaintiff of t h e r i g h t to effect dismissal of t h e
action by m e r e notice is not t h e filing of t h e defendant's
a n s w e r w i t h t h e court b u t t h e service on t h e plaintiff of
said a n s w e r or of a motion for s u m m a r y j u d g m e n t . W h e r e
t h e plaintiff filed t h e notice of dismissal of his action in
t h e court after t h e filing of defendant's a n s w e r b u t before
service thereof, t h e plaintiff's notice to t h a t effect ipso
facto b r o u g h t about t h e dismissal of t h e p e n d i n g action
w i t h o u t need of any order from t h e t r i a l court (Go vs.
Cruz, et al., G.R. No. 58986, April 17, 1989).
4. This section is also applicable to special proceed-

ings (Ventura vs. Ventura, 106 Phil. 1165 [Unrep.]). The
former portion thereof r e g a r d i n g dismissal or compromise
of a class suit h a s been t r a n s f e r r e d to Sec. 2 of t h i s Rule
since t h e s a m e a r e effected by motion, a n d not by mere
notice, to t h e court.
5. W h e r e t h e first c o m p l a i n t for foreclosure of a

c h a t t e l m o r t g a g e for n o n - p a y m e n t of c e r t a i n i n s t a l l m e n t s
due t h e r e u n d e r was dismissed with prejudice, at the
instance of the plaintiff u n d e r this section, a n o t h e r
complaint l a t e r filed by him for n o n - p a y m e n t of install-
m e n t s s u b s e q u e n t t o t h o s e involved i n t h e first case
should not be d i s m i s s e d on t h e g r o u n d of res judicata
since said second case involved different causes of action
(Filinvest Credit Corp. vs. Salas, et al, G.R. No. 63326,
July 31, 1984).
S e c . 2. Dismissal upon motion of plaintiff. —

Except as provided in the p r e c e d i n g section, a
300
RULE 17 DISMISSAL OF ACTIONS SEC. 2
complaint shall not be dismissed at the plaintiffs

instance save upon approval of the court and upon
such terms and conditions as the court deems
p r o p e r . If a c o u n t e r c l a i m h a s b e e n p l e a d e d by a
defendant prior to the service upon him of the
p l a i n t i f f s m o t i o n for d i s m i s s a l , t h e d i s m i s s a l s h a l l
be limited to the complaint. The dismissal shall be
without prejudice to the right of the defendant to
prosecute his counterclaim in a separate action
u n l e s s w i t h i n fifteen (16) d a y s from n o t i c e o f t h e
motion he manifests his preference to have his
counterclaim resolved in the same action. Unless
o t h e r w i s e specified in the order, a dismissal under
this paragraph shall be without prejudice. A class
suit shall not be dismissed or compromised without
t h e a p p r o v a l o f t h e c o u r t . (2a)
NOTES
1. Prior to this amendatory Sec. 2, the rule was t h a t

the plaintiff could not move for the dismissal of his com-
plaint if, before the service of his motion therefor upon
the defendant, t h e l a t t e r had filed a counterclaim which
could not r e m a i n pending for independent adjudication
by the trial court, hence the defendant could object to the
dismissal of the action. Applying t h a t provision, it was
held t h a t after the defendant had answered, dismissal can
be effected only by order of the court on proper notice and
h e a r i n g . S u c h d i s m i s s a l c a n n o t be o r d e r e d over t h e
defendant's objection if the counterclaim of the defendant
cannot remain pending for independent adjudication, t h a t
is, a compulsory c o u n t e r c l a i m (see Ynotorio vs. Lira,
L-16677, Nov. 27, 1964; Lim Tanhu, et al. vs. Ramolete,
et al, L-40098, Aug. 29, 1975). The dismissal under this
rule was also without prejudice, except (a) when other-
wise stated in the motion to dismiss, or (b) when stated to
be with prejudice in the order of the court (see Vergara,
et al. vs. Ocumen, et al., G.R. No. 53971, June 19, 1982).
301
A further qualifying doctrine w a s to t h e effect t h a t

t h e r u l e t h a t a complaint m a y not be dismissed if t h e
counterclaim c a n n o t be independently adjudicated does
not apply to, a n d will not i n u r e to t h e benefit of, a plaintiff
who deliberately p r e v e n t s or delays t h e prosecution of his
own complaint. Especially is this t r u e w h e r e t h e complaint
w a s d i s m i s s e d as a c o n s e q u e n c e of p l a i n t i f f ' s b e i n g
non-suited at the pre-trial as he has thereby virtually
a b a n d o n e d his claims in his complaint (Sta. Maria vs.
CA, et al, L-30602, June 30, 1972).
Although t h e aforesaid doctrines m u s t now yield to
t h e a m e n d m e n t s in Sec. 2, as h e r e u n d e r explained, t h e
r a t i o n a l e in t h e Sta. Maria case t h a t a p l a i n t i f f w h o
delays or p r e v e n t s t h e prosecution of his own complaint
should not benefit therefrom, as by raising any
objection to t h e a p p r o p r i a t e disposition of d e f e n d a n t ' s
counterclaim, is still a sound rule.
2. U n d e r t h i s revised section, w h e r e t h e plaintiff

m o v e s for t h e d i s m i s s a l of h i s c o m p l a i n t to w h i c h a
c o u n t e r c l a i m h a s b e e n interposed, t h e d i s m i s s a l s h a l l be
limited to t h e complaint. Such d i s m i s s a l shall be w i t h o u t
prejudice to t h e r i g h t of t h e d e f e n d a n t to e i t h e r prosecute
his c o u n t e r c l a i m in a s e p a r a t e action or to have t h e s a m e
resolved in t h e s a m e action. Should he opt for t h e first
a l t e r n a t i v e , t h e court should r e n d e r t h e c o r r e s p o n d i n g
o r d e r g r a n t i n g a n d r e s e r v i n g his r i g h t to p r o s e c u t e his
claim in a s e p a r a t e complaint. Should he choose to have
his c o u n t e r c l a i m disposed of in t h e s a m e action w h e r e i n
the complaint had been dismissed, he must manifest
such preference to t h e t r i a l c o u r t w i t h i n 15 d a y s from
notice to h i m of p l a i n t i f f s m o t i o n to d i s m i s s . These
a l t e r n a t i v e r e m e d i e s of t h e defendant a r e available to him
r e g a r d l e s s of w h e t h e r his counterclaim is compulsory or
permissive. A similar alternative procedure, with the
s a m e u n d e r l y i n g reason therefor, is adopted in Sec. 6, Rule
16 a n d Sec. 3 of t h i s R u l e , w h e r e i n t h e c o m p l a i n t is
302
R U L E 17 DISMISSAL OF ACTIONS SEC. 3
dismissed on motion of t h e defendant or, in t h e l a t t e r

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

for n o j u s t i f i a b l e c a u s e , t h e plaintiff fails t o a p p e a r
on the date of the presentation of his evidence in
chief on the complaint, or to prosecute his action
for a n u n r e a s o n a b l e l e n g t h o f t i m e , o r t o c o m p l y
with these Rules or any order of the court, the
303
complaint may be dismissed upon motion of the

defendant or upon the court's o w n motion, w i t h o u t
prejudice to the right of the defendant to prosecute
his c o u n t e r c l a i m in the same or in a separate
action. This dismissal shall have the effect of an
adjudication upon the merits, unless otherwise
d e c l a r e d b y t h e c o u r t . (3a)
NOTES
1. Two i m p o r t a n t c h a n g e s have been introduced by

t h i s section. The dismissal of t h e case for failure of t h e
plaintiff to a p p e a r at t h e trial, to be valid, now r e q u i r e s
t h a t (1) his n o n - a p p e a r a n c e is w i t h o u t justifiable cause,
a n d (2) such prejudicious absence is limited to t h e d a t e
or d a t e s w h e n t h e p r e s e n t a t i o n of his evidence in chief on
t h e complaint w a s scheduled or expected. The provision
in t h e former section r e f e r r i n g to p l a i n t i f f s failure to
a p p e a r "at t h e t i m e of t h e trial" could r e s u l t in unfair if
not a b s u r d r e s u l t s , considering t h e l e n g t h of t h e period
of t h e t r i a l a n d t h e different s t a g e s thereof w h e r e i n t h e
p r e s e n c e of t h e d e f e n d a n t a n d t h e o t h e r p a r t i e s a r e not
e v e n r e q u i r e d . S i n c e t h e p l a i n t i f f s p r e s e n c e i s now
r e q u i r e d only d u r i n g t h e p r e s e n t a t i o n of his evidence in
chief, his absence d u r i n g t h e p r e s e n t a t i o n of t h e evidence
of the defendant or the other parties, or even at the
r e b u t t a l or s u b s e q u e n t s t a g e s of t h e trial, is not a ground
for dismissal.
2. The second s u b s t a n t i a l a m e n d m e n t to this

section is w i t h respect to t h e disposition of t h e defendant's
counterclaim in the event the plaintiffs complaint is
dismissed. As a l r e a d y observed, he is h e r e g r a n t e d t h e
choice to p r o s e c u t e t h a t counterclaim in e i t h e r t h e s a m e
or a s e p a r a t e action, j u s t like t h e g r a n t of t h a t r e m e d y in
Sec. 6 of Rule 16. It may be noted t h a t in t h e p r e s e n t
i n s t a n c e , as well as u n d e r t h e a f o r e s t a t e d S e c . 6 of
Rule 16, t h e d e f e n d a n t is not r e q u i r e d to manifest his
304
preference within a 15-day period, as in Sec. 2 of this Rule

The reason is t h a t the motions to dismiss contemplated
in Sec. 6, Rule 16 a n d in t h i s section a r e filed by t h e
defendant who perforce has already deliberated upon the
course of action he intends to take on his counterclaim
and which he may even manifest right in his motion to
dismiss the complaint. The dismissal in Sec. 2 of this Rule
is at the instance of the plaintiff, hence the defendant is
granted the time and also t h e duty to t h u s manifest his
preference within 15 days from notice, after an opportunity
to study the situation.
3. With t h e aforestated a m e n d m e n t s in Secs. 2 and

3 l a y i n g d o w n specific r u l e s on t h e d i s p o s i t i o n of
c o u n t e r c l a i m s involved in t h e d i s m i s s e d a c t i o n s , t h e
c o n t r o v e r s i a l doctrine in BA Finance Corporation vs.
Co, et al. (G.R. No. 105751, J u n e 30, 1993) h a s been
abandoned, together with t h e a p p a r e n t confusion on the
proper application of said Secs. 2 and 3. Said sections
were distinguished and discussed in the author's separate
opinion in t h a t case, even before they were clarified by
the p r e s e n t a m e n d m e n t s , as follows:
"Turning back to Rule 17, it is readily a p p a r e n t
t h a t Sections 2 a n d 3 t h e r e o f e n v i s a g e different
factual a n d adjective situations. The dismissal of
the complaint u n d e r Section 2 is at the instance of
plaintiff, for w h a t e v e r reason he is minded to move
for such dismissal, and, as a matter of procedure, is
without prejudice unless otherwise stated in the order
of the court or, for t h a t matter, in plaintiffs motion
to dismiss his own complaint. By reason thereof, to
curb any dubious or frivolous strategy of plaintiff for
his benefit or to obviate possible prejudice to
defendant, the former may not dismiss his complaint
over t h e d e f e n d a n t ' s objection if t h e l a t t e r h a s a
compulsory c o u n t e r c l a i m since said c o u n t e r c l a i m
would necessarily be divested of juridical basis and
d e f e n d a n t would be deprived of possible recovery
305
t h e r e o n in t h a t s a m e judicial proceeding.
"Section 3, on t h e o t h e r h a n d , c o n t e m p l a t e s a
dismissal not procured by plaintiff, albeit justified by
causes imputable to him a n d which, in t h e p r e s e n t
case, was petitioner's failure to a p p e a r at t h e pre-trial.
This situation is also covered by Section 3, as extended
by judicial interpretation, and is ordered upon
motion of d e f e n d a n t or motu proprio by t h e court.
H e r e , t h e issue of w h e t h e r d e f e n d a n t h a s a p e n d i n g
c o u n t e r c l a i m , p e r m i s s i v e or c o m p u l s o r y , is not of
determinative significance. The dismissal of plaintiffs
complaint is evidently a confirmation of t h e failure of
evidence to prove his cause of action outlined t h e r e i n ,
h e n c e t h e d i s m i s s a l is c o n s i d e r e d , as a matter of
evidence, an adjudication on t h e m e r i t s . This does
not, however, m e a n t h a t t h e r e is likewise such ab-
sence of evidence to prove defendant's c o u n t e r c l a i m
a l t h o u g h t h e s a m e a r i s e s out of t h e s u b j e c t - m a t t e r of
t h e complaint which w a s merely t e r m i n a t e d for lack
of proof. To hold o t h e r w i s e w o u l d n o t only w o r k
injustice to d e f e n d a n t but would be r e a d i n g a
further provision into Section 3 and wresting a
m e a n i n g therefrom a l t h o u g h n e i t h e r exists even by
m e r e implication. T h u s u n d e r s t o o d , t h e complaint
can accordingly be dismissed, b u t relief can never-
t h e l e s s be g r a n t e d as a m a t t e r of course to d e f e n d a n t
on his counterclaim as alleged a n d proved, w i t h or
w i t h o u t any r e s e r v a t i o n therefor on his p a r t , u n l e s s
from his conduct, e x p r e s s or implied, he h a s virtually
c o n s e n t e d to t h e concomitant d i s m i s s a l of his coun-
terclaim."
4. It has been held t h a t the circumstances set

out in t h i s section a r e t h e only instances w h e r e i n t h e court
m a y dismiss a case on its own motion (Malig vs. Bush,
L-22761, May 31, 1969). N e v e r t h e l e s s , it should also be
recalled t h a t if t h e court finds t h a t it h a s no jurisdiction
306
over t h e subject-matter of t h e suit, t h a t t h e r e is a n o t h e r

action p e n d i n g between t h e same p a r t i e s for t h e same
cause, or t h a t t h e action is barred by a prior j u d g m e n t or
by s t a t u t e of limitations, t h e court shall dismiss t h e case
sua sponte (Sec. 1, Rule 9).
5. U n l e s s otherwise provided in t h e order of t h e

court, a dismissal u n d e r this section is with prejudice.
Thus, w h e n t h e dismissal does not contain any condition
at all, it h a s t h e effect of an adjudication on t h e merits as
it is understood to be with prejudice (Guanzon vs. Mapa,
L-19249, Feb. 28, 1963; cf. Insular Veneer, Inc. vs. Plan,
L-40155, Sept. 10, 1976).
6. Failure to comply with a court order is ground for

d i s m i s s a l of t h e c a s e (Aranico-Robino vs. Aquino,
L-46641, Oct. 28, 1977), s u c h as w h e r e t h e plaintiff
failed to a m e n d his p l e a d i n g as ordered by t h e court
(Dizon vs. Garcia, 110 Phil. 186), unless the order is null
and void as w h e r e , upon t h e d e a t h of t h e d e f e n d a n t ,
the court ordered t h e plaintiff to amend his complaint
contrary to Sec. 17 (now, Sec. 16), Rule 3 which directs
t h a t in t h a t case t h e heirs of the defendant be merely
s u b s t i t u t e d in lieu of t h e deceased (Gojo vs. Golaya,
L-26768, Oct. 30, 1970). Also, the dismissal of the case
for failure of plaintiffs counsel to manifest w h e t h e r he
was availing of or dispensing with modes of discovery, as
required by a clerk in the office of the judge, is null and
void as no such notice is authorized by the Rules (Koh vs.
IAC, et al., G.R. No. 71388, Sept. 23, 1986).
7. Unjustifiable inaction on the p a r t of plaintiff to
have t h e case s e t for t r i a l is ground for dismissal for
f a i l u r e to p r o s e c u t e (Ventura vs. Bayan, L-12960,
Jan. 31, 1962; Insurance Company of North America vs.
Republic, L-26794, Nov. 15, 1967). The "unreasonable
length of time" in failure to prosecute is addressed to the
sound discretion of the trial court (Olilang vs. Nocon, et
al., L-31072, July 22, 1971). T h e s e r u l e s a p p l y to
307
pre-trials and appeals to the former Court of First

I n s t a n c e (Racimo vs. Diho, L-27804, Feb. 27, 1976) and
t h e c a s e m a y b e d i s m i s s e d for a p p e l l a n t ' s f a i l u r e t o
prosecute his a p p e a l for an u n r e a s o n a b l e length of time
(Republic vs. Guarin, et al, L-26367, Jan. 31, 1978). In
a case appealed to t h e t h e n Court of F i r s t I n s t a n c e , t h e
a p p e l l a n t ( w h e t h e r plaintiff or defendant) s t a n d s in t h e
s a m e position as t h e plaintiff in a case originally filed in
said court, hence t h e provisions of Sec. 3, Rule 17 also
apply to said a p p e l l a n t (Capitol Rural Bank of Quezon
City, Inc. vs. Meridian Assurance Corp., G.R. No. 54416,
Oct. 17, 1980).
8. It is p l a i n t i f f s failure to a p p e a r at t h e trial, and

not the absence of his lawyer, which warrants
d i s m i s s a l (Dayo, et al. vs. Dayo, et al, 95 Phil. 703;
Marahay vs. Melicor, etc., et al, L-44980, Feb. 6, 1990).
9. A motion for t h e reconsideration of an order

dismissing t h e case for failure to p r o s e c u t e need not be
a c c o m p a n i e d by a f f i d a v i t s of m e r i t s (Gapoy vs. Adil,
et al, L-46182, Feb. 28, 1978).
10. D i s m i s s a l u n d e r Secs. 1, 2 a n d 3 of t h i s
Rule, u n l e s s otherwise ordered, is an adjudication on t h e
m e r i t s except, of course, dismissal for lack of jurisdiction
which is always w i t h o u t prejudice (Rivera vs. Luciano,
L-20944, Aug. 14, 1965, a n d cases t h e r e i n cited).
1 1 . The principle t h a t t h e dismissal of t h e complaint

c a r r i e s w i t h it t h e dismissal of t h e counterclaim applies to
instances w h e r e t h e court has no jurisdiction over t h e main
case (Metals Engineering Resources Corp. vs. CA, et al,
G.R. No. 95631, Oct. 28, 1991). O t h e r w i s e , a counter-
claim may not be dismissed if d e f e n d a n t objects, unless it
can be i n d e p e n d e n t l y considered by t h e court. W h e r e no
objection was m a d e , t h e dismissal of t h e counterclaim was
valid. At any r a t e , if t h e dismissal of such c o u n t e r c l a i m is
w i t h o u t prejudice, it m a y be refiled as a s e p a r a t e action
308
R U L E 17 DISMISSAL OF ACTIONS SEC. 4
under Sec. 2, Rule 17 (Fletcher Challenge Petroleum Phil.,

Ltd., et al. vs. CA, et al., G.R. No. 123292, April 20, 1998).
12. W h e r e c o u n s e l for t h e plaintiff h a d a d d u c e d
e v i d e n c e for h i s c l i e n t , h i s f a i l u r e t o a p p e a r a t a
s u b s e q u e n t h e a r i n g cannot be considered as failure to
prosecute but only a waiver of the right to cross-examine
t h e w i t n e s s e s for t h e d e f e n d a n t a n d to object to t h e
a d m i s s i b i l i t y of e v i d e n c e for t h e l a t t e r (Jalover vs.
Ytoriaga, L-35989, Oct. 28, 1977).
13. T h e p r o v i s i o n s of Sec. 3 of t h i s Rule do not

apply to criminal cases (People vs. Bellosillo, L-18512,
Dec. 27, 1963).
14. For a critique of t h e controversial antecedents of
Secs. 2 and 3 of the Rule before their a m e n d m e n t in 1997
and t h e c u r r e n t perceptions consequent to such amend-
ments, see Tinga vs. Heirs of German Santiago, etc. (G.R.
No. 170354, J u n e 30, 2006).
S e c . 4. Dismissal of counterclaim, cross-claim,

or third-party complaint. — T h e p r o v i s i o n s of t h i s
Rule shall apply to the dismissal of any counter-
claim, cross-claim, or t h i r d - p a r t y complaint. A
voluntary dismissal by the claimant by notice as in
s e c t i o n 1 of t h i s R u l e , shall be m a d e before a
r e s p o n s i v e p l e a d i n g o r a m o t i o n for s u m m a r y
j u d g m e n t is served or, if t h e r e is none, before t h e
i n t r o d u c t i o n o f e v i d e n c e a t t h e t r i a l o r h e a r i n g . (4a)
309
RULE 18
PRE-TRIAL
S e c t i o n 1. When conducted. — A f t e r t h e l a s t
p l e a d i n g h a s been served and filed, it shall be the
d u t y of t h e p l a i n t i f f to p r o m p t l y m o v e ex parte t h a t
t h e c a s e b e s e t for p r e - t r i a l . (5a, R20)
NOTES
1. To o b v i a t e t h e conflicting v i e w s a n d d e c i s i o n s
u n d e r t h e former Rule, Sec. 1 now imposes upon t h e plain-
tiff t h e d u t y to p r o m p t l y move ex parte t h a t t h e case be set
for pre-trial, a n d t h i s he m u s t do upon t h e service and
filing of t h e last p l e a d i n g required in t h e case by t h e Rules
or, in a p p r o p r i a t e c i r c u m s t a n c e s , by t h e court itself. This
clarifies a n d c h a n g e s t h e p r o c e d u r e p r e s c r i b e d i n t h e
former Sec. 5 of Rule 20 which imposed t h a t d u t y on t h e
clerk of court "upon t h e submission" of t h e last pleading.
The t r a n s f e r of responsibility to t h e plaintiff himself, as
h a s b e e n followed in o t h e r provisions of t h e revised Rules,
is b a s e d on t h e policy t h a t whosoever is t h e p r o p o n e n t of
t h e p a r t i c u l a r s t a g e of t h e proceeding should himself ini-
t i a t e t h e c o r r e s p o n d i n g s t e p s t o have judicial action t a k e n
t h e r e o n since he is p r e s u m e d to be t h e one i n t e r e s t e d in
t h e speedy disposition thereof.
2. P r e - t r i a l u n d e r t h e former Rules w a s r e q u i r e d only

i n C o u r t s o f F i r s t I n s t a n c e (now, t h e R e g i o n a l T r i a l
Courts) a n d not in inferior courts, b u t t h e l a t t e r could con-
duct p r e - t r i a l if they so desired. However, P a r . 9 of t h e
I n t e r i m Rules r e q u i r e d t h e inferior c o u r t s to observe t h e
s a m e p r o c e d u r e a s t h a t followed i n t h e R e g i o n a l T r i a l
C o u r t s a n d Rule 5 now provides for t h a t uniform proce-
d u r e , albeit w i t h qualifications.
310
RULE 18 PRE-TRIAL SEC. 2
3. The pre-trial and t r i a l on the merits of t h e case

must be held on s e p a r a t e dates (Heirs of Jose Fuentes,
et al. vs. Macandog, etc., et al, L-45445, June 16, 1978).
4. A p r e - t r i a l cannot validly be held u n t i l t h e last
pleading h a s been filed, which last pleading may be the
p l a i n t i f f s reply (Pioneer Insurance & Surety Corp., et al.
vs. Hontanosas, et al, L-35951, Aug. 31, 1977), except
where t h e period to file t h e last pleading has lapsed. The
pre-trial may be properly scheduled even if the plaintiff
had not yet filed his answer to the defendant's compul-
sory counterclaim since no answer is required to be filed
t h e r e t o (Sarmiento vs. Juan, G.R. No. 56605, Jan. 28,
1983; see Koh vs. LAC, G.R. No. 71388, Sept. 23, 1986).
S e c . 2. Nature and purpose. — T h e p r e - t r i a l is

mandatory. The court shall consider:
(a) T h e p o s s i b i l i t y o f a n a m i c a b l e s e t t l e m e n t o r
of a s u b m i s s i o n to a l t e r n a t i v e m o d e s of d i s p u t e r e s o -
lution;
(b) T h e s i m p l i c a t i o n o f t h e i s s u e s ;
(c) T h e n e c e s s i t y o r d e s i r a b i l i t y o f a m e n d m e n t s
to the pleadings;
(d) T h e p o s s i b i l i t y o f o b t a i n i n g s t i p u l a t i o n s o r
admissions of facts and of documents to avoid un-
n e c e s s a r y proof;
(e) T h e l i m i t a t i o n o f t h e n u m b e r o f w i t n e s s e s ;
(0 T h e a d v i s a b i l i t y of a p r e l i m i n a r y r e f e r e n c e
of i s s u e s to a c o m m i s s i o n e r ;
(g) T h e p r o p r i e t y o f r e n d e r i n g j u d g m e n t o n t h e
pleadings, or summary judgment, or of dismissing
t h e a c t i o n s h o u l d a v a l i d g r o u n d t h e r e f o r be f o u n d
to exist;
(h) T h e a d v i s a b i l i t y o r n e c e s s i t y o f s u s p e n d i n g
the proceedings; and
311
(i) S u c h o t h e r m a t t e r s a s m a y a i d i n t h e p r o m p t
d i s p o s i t i o n o f t h e a c t i o n , ( l a , R20)
NOTES
1. The purposes of a pre-trial u n d e r t h e old Rule have

been reproduced w i t h two s u b s t a n t i a l a m e n d m e n t s , viz.:
(a) t h e court shall consider submission to alternative modes
of dispute resolution including conciliation a n d mediation,
and not only a r b i t r a t i o n ; a n d (b) it shall also consider t h e
advisability of j u d g m e n t on the pleadings, s u m m a r y
j u d g m e n t or dismissal of t h e action on t h e b a s e s of t h e
proceedings at t h e p r e - t r i a l conference.
2 . W i t h r e g a r d t o s u b m i s s i o n t o a r b i t r a t i o n , see
R.A. 876 a n d A r t s . 2028 to 2041 of t h e Civil Code on
compromises and arbitrations. For recent legislation
p r o v i d i n g for a b r o a d e r scope of a l t e r n a t i v e m o d e s of
dispute resolution, see R.A. 9285 which institutionalized
t h e use of an a l t e r n a t i v e d i s p u t e resolution s y s t e m a n d
e s t a b l i s h e d t h e Office for A l t e r n a t i v e D i s p u t e Resolution
(Appendix DD).
3. The findings of fact of a t r i a l court c o n s e q u e n t to

a p r e - t r i a l conference a r e findings which a r e b a s e d on
evidence a n d can accordingly s u p p o r t a decision or an
order (Libudan vs. Gil, L-21163, May 17, 1972).
S e c . 3. Notice of pre-trial. — T h e n o t i c e of
pre-trial shall be served on counsel, or on the party
who has no counsel. The counsel served with such
notice is charged with the duty of notifying the
p a r t y r e p r e s e n t e d b y h i m . (n)
NOTE
1. U n d e r t h e former procedure, t h e S u p r e m e Court

held t h a t a notice of p r e - t r i a l m u s t be served on t h e p a r t y
affected separately from his counsel (Heirs of Jose Fuentes,
312
et al. vs. Macandog, etc., et al. supra), and the same may
be served directly to him or t h r o u g h his counsel (Lim,
et al. vs. Animas, etc., et al., L-39094, April 18, 1975),
otherwise t h e proceedings will be null and void (Sagarino
vs. Pelayo, L-27927, June 20, 1977; Patalinjug vs. Peralta,
et al., L-43324, May 5, 1979). It was the duty of counsel
upon whom such notice is served to see to it t h a t his client
receives such notice and a t t e n d s the pre-trial, otherwise
he will be liable for grave a d m i n i s t r a t i v e disciplinary
action (Taroma, et al. vs. Sayo, et al., L-37296, Oct. 30,
1975).
The p r o c e d u r e h a s been simplified in t h i s revised
section in t h e sense t h a t t h e notice of pre-trial shall be
served on counsel, and service shall be made on the party
only if he h a s no counsel. However, the duty of counsel
served with such notice to duly notify his client thereof
r e m a i n s substantially the same.
S e c . 4. Appearance of parties. — It s h a l l be t h e
duty of the parties and their counsel to appear at
t h e p r e - t r i a l . T h e n o n - a p p e a r a n c e of a p a r t y m a y
be e x c u s e d o n l y if a v a l i d c a u s e is s h o w n t h e r e f o r
or if a r e p r e s e n t a t i v e s h a l l a p p e a r in h i s b e h a l f fully
authorized in writing to enter into an amicable
settlement, to submit to alternative modes of
dispute resolution, and to enter into stipulations
or a d m i s s i o n s of f a c t s a n d of d o c u m e n t s , (n)
NOTES
1. T h e specificity i n t r o d u c e d by t h i s new section

underscores the necessity for the personal appearance of
t h e p a r t i e s at t h e p r e - t r i a l conference in view of t h e
purposes thereof. This provision is based on the doctrines
of the Supreme Court which held t h a t the purpose of the
revised Rules is to compel the parties to appear personally
before the court to reach, if possible, a compromise. Where
313
the counsel for the plaintiff asserted t h a t he h a d been given

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

the plaintiff to a p p e a r w h e n so required p u r s u a n t
314
t o t h e n e x t p r e c e d i n g s e c t i o n s h a l l b e c a u s e for d i s -
missal of the action. The dismissal shall be with
prejudice, unless otherwise ordered by the court.
A similar failure on the part of the defendant shall
be cause to allow the plaintiff to present his
e v i d e n c e ex parte a n d t h e c o u r t to r e n d e r j u d g m e n t
o n t h e b a s i s thereof. (2a, R20)
NOTES
1. This is a s u b s t a n t i a l reproduction of Sec. 2 of the

former Rule 20 w i t h t h e c h a n g e t h a t , i n s t e a d of t h e
defendant being declared "as in default" by reason of his
n o n - a p p e a r a n c e , t h i s section now spells out t h a t t h e
procedure will be to allow t h e ex parte p r e s e n t a t i o n of
plaintiffs evidence and t h e rendition of judgment on the
basis thereof. While actually the procedure r e m a i n s the
s a m e , t h e p u r p o s e is one of s e m a n t i c a l p r o p r i e t y or
terminological accuracy as there were criticisms on the use
of the word "default" in t h e former provision since t h a t
t e r m is identified w i t h t h e failure to file a r e q u i r e d
answer, not non-appearance in court.
2. The t r i a l court has discretion to declare a party
non-suited (American Insurance Co. vs. Republic,
L 25478, Oct. 23, 1967) and, unless otherwise provided,
such dismissal has t h e effect of an adjudication on the
m e r i t s (Geralde, et al. vs. Sabido, et al., L-35450,
Aug. 19, 1982). Such exercise of discretion will not be
interfered with by the appellate courts, absent a showing
of g r a v e a b u s e thereof. W h e r e , as in one case, both
counsel and plaintiff did not appear at the pre-trial, an
order of non-suit was proper (Arcuino, et al. vs. Aparis, et
al., L-23424, Jan. 31, 1968).
3. Where the defendant is declared in default for his
failure to a p p e a r at the pre-trial, his remedy is to file a
motion for reconsideration without need for affidavits of
merits regarding the fraud, accident, mistake or excusable
315
negligence (Lucero vs. Dacayo, L-23718, May 13, 1968),

obviously because t h e defenses of t h e defendant a r e set
out in his answer. If denied with grave abuse of discretion,
certiorari is the remedy as such order of default is
interlocutory. The r e m e d y of t h e plaintiff who is non-
suited, on t h e o t h e r h a n d , is to a p p e a l from t h e order of
dismissal, t h e s a m e being a final order. If h a s also been
held t h a t said motion of the plaintiff need not be
a c c o m p a n i e d b y a f f i d a v i t s o f m e r i t s s i n c e t h e suf-
ficiency of t h e c a u s e of action can be d e t e r m i n e d from
t h e allegations in t h e complaint (Gapoy vs. Adil, et al.,
L-46182, Feb. 28, 1978).
4. Where t h e defendant was p r e s e n t at t h e pre-trial,

t h e c o u r t h a s no a u t h o r i t y to t h e r e a f t e r call a second
p r e - t r i a l a n d declare d e f e n d a n t in default for his absence
therein (Pioneer Insurance & Surety Corp., et al. vs.
Hontanosas, et al., supra; cf. Jaranilla, et al. vs. Adil,
et al., L-44884, Feb. 28, 1979). For t h a t m a t t e r , w h e r e a
p r e - t r i a l h a s a l r e a d y been held, t h e fact t h a t a n a m e n d e d
complaint w a s l a t e r filed, w i t h leave of court, does not
necessitate a n o t h e r pre-trial (Insurance Company of North
America vs. Republic, et al., L-26794, Nov. 15, 1967).
5. T h e d i s m i s s a l of t h e case by t h e c o u r t d u e to
n o n - a p p e a r a n c e of t h e plaintiff a n d his c o u n s e l at t h e
pre-trial, b u t w i t h o u t p r o p e r notice of said p r e - t r i a l served
on them, is violative of due process and the dismissal should
be s e t a s i d e (Loquias vs. Rodriguez, et al., L-38388,
July 31, 1975). W h e r e p e t i t i o n e r ' s counsel w a s not served
w i t h a s e p a r a t e notice of p r e - t r i a l , a l t h o u g h his client
acknowledged receipt of a copy thereof in its behalf a n d of
said counsel, said service is insufficient a n d t h e o r d e r of
default a n d t h e ex parte proceedings before t h e commis-
sioner a r e null a n d void (People's Realty Brokerage Corp.
vs. Lustre, et al., L-41495, Oct. 20, 1978). This doctrine
would s t i l l hold t r u e a s i t does not conflict w i t h t h e
a m e n d e d Sec. 3 of t h i s Rule.
316
RULE 18 PRE-TRIAL SECS. 6, 7
S e c . 6. Pre-trial brief. — T h e p a r t i e s shall file w i t h

t h e c o u r t a n d s e r v e o n t h e a d v e r s e party, i n s u c h
manner as shall insure their receipt thereof at least
t h r e e (3) d a y s b e f o r e t h e d a t e o f t h e pre-trial, t h e i r
respective pre-trial briefs which shall contain,
among others:
(a) A s t a t e m e n t o f t h e i r w i l l i n g n e s s t o e n t e r
into amicable settlement or alternative modes of
dispute resolution, indicating the desired terms
thereof;
(b) A s u m m a r y of a d m i t t e d facts a n d p r o p o s e d
s t i p u l a t i o n o f facts;
(c) T h e i s s u e s t o b e t r i e d o r r e s o l v e d ;
(d) T h e d o c u m e n t s o r e x h i b i t s t o b e p r e s e n t e d ,
s t a t i n g t h e p u r p o s e thereof;
(e) A m a n i f e s t a t i o n of t h e i r h a v i n g a v a i l e d or
their intention to avail themselves of discovery
procedures or referral to commissioners; and
(f) T h e n u m b e r a n d n a m e s o f t h e w i t n e s s e s ,
and the substance of their respective testimonies.
F a i l u r e t o file t h e pre-trial b r i e f s h a l l h a v e t h e
s a m e e f f e c t a s f a i l u r e t o a p p e a r a t t h e pre-trial, (n)
NOTE
1. This section makes it the mandatory duty of the

parties to seasonably file their pre-trial briefs under the
conditions and with the sanctions provided therein. The
case of Dimayacyac, et al. vs. CA, et al. (G.R. No. 50907,
Sept. 27, 1979) which excused the non-filing of the pre-
trial brief on the ground t h a t the former Rule did not then
require the same is accordingly abrogated.
S e c . 7. Record of pre-trial. — T h e p r o c e e d i n g s in
the pre-trial s h a l l b e r e c o r d e d . U p o n t h e t e r m i n a -
317
tion thereof, the court shall issue an order w h i c h

shall recite in detail the matters taken up in the
conference, the action taken thereon, the amend-
ments allowed to the pleadings, and the agreements
or admissions made by the parties as to any of the
matters considered. Should the action proceed to
trial, the order shall explicitly define and limit the
issues to be tried. The contents of the order shall
control the subsequent course of the action, unless
modified before trial to prevent manifest injustice.
(5a, R20)
NOTES
1. T h i s provision on the p r o c e d u r e in p r e - t r i a l
proceedings in civil cases is different from t h a t obtaining
in c r i m i n a l cases w h e r e i n , as provided in Sec. 2 of Rule
118, an a g r e e m e n t or admission of a p a r t y in t h e p r e - t r i a l
conference s h a l l be admissible a g a i n s t h i m only if reduced
to w r i t i n g a n d signed by h i m a n d his counsel. However,
t h e b i n d i n g effect of t h e p r e - t r i a l order issued u n d e r t h i s
section is s u b s t a n t i a l l y t h e s a m e as a p r e - t r i a l order in
c r i m i n a l cases, as provided in Sec. 4 of said Rule.
2. T h e a m e n d m e n t of a p r e - t r i a l order is a d d r e s s e d
to t h e s o u n d d i s c r e t i o n of t h e c o u r t (Gotico vs. Leyte
Chinese Chamber of Commerce, L-39379, April 30, 1985).
3. W h e r e t h e a m o u n t of back r e n t a l s to be paid by
t h e d e f e n d a n t is s t a t e d in t h e p r e - t r i a l o r d e r in t h e n a t u r e
of a compromise a g r e e m e n t t h e r e o n , said p r e - t r i a l order
in t h a t s e n s e h a s t h e force of res judicata on t h a t issue
(M & M Management Aids, Inc. vs. CA, et al., G.R.
No. 53942, June 29, 1984).
4. A p r e - t r i a l o r d e r is not m e a n t to be a detailed
catalogue of e a c h a n d every issue t h a t is to be or may be
318
t a k e n u p d u r i n g t h e t r i a l . I s s u e s t h a t a r e impliedly
included t h e r e i n by necessary implication are as much
i n t e g r a l p a r t s of t h e p r e - t r i a l order as those t h a t a r e
expressly s t i p u l a t e d (Velasco, et al. vs. Apostol, et al.,
L-44588, May 9, 1989).
5. In A.M. No. 03-1-09-SC, t h e S u p r e m e C o u r t

issued a Rule on Guidelines to be Observed by Trial Court
J u d g e s a n d Clerks of Court in t h e Conduct of Pre-trial
a n d U s e of Deposition-Discovery M e a s u r e s , effective
August 16, 2004.
319
RULE 19
INTERVENTION
S e c t i o n 1. Who may intervene. — A p e r s o n w h o

h a s a l e g a l i n t e r e s t in t h e m a t t e r in l i t i g a t i o n , or in
the success of either of the parties, or an interest
against both, or is so situated as to be adversely
a f f e c t e d by a d i s t r i b u t i o n or o t h e r d i s p o s i t i o n of
p r o p e r t y i n t h e c u s t o d y o f t h e c o u r t o r o f a n officer
thereof may, with leave of court, be allowed to
intervene in the action. The court shall consider
whether or not the intervention will unduly delay
or prejudice the adjudication of the rights of
the original parties, and w h e t h e r or not the inter-
v e n e r ' s r i g h t s m a y be fully p r o t e c t e d in a s e p a r a t e
p r o c e e d i n g . (2[2], [b]a, R12)
NOTES
1. This r i g h t to intervene is not an absolute right.

The procedure to secure t h e r i g h t to i n t e r v e n e is fixed by
t h e s t a t u t e or rule, a n d intervention can be secured only
in accordance w i t h t h e t e r m s of t h e applicable provision.
Under our rule on intervention, the allowance or
disallowance of a motion to intervene is a d d r e s s e d to the
sound discretion of t h e court (Big Country Ranch Corp.
vs. CA, et al., G.R. No. 102927, Oct. 12, 1993).
2. I n t e r v e n t i o n is not intended to change t h e n a t u r e

and c h a r a c t e r of t h e action itself (Garcia, etc., et al. vs.
David, et al., 67 Phil. 279). In general, an i n d e p e n d e n t
controversy cannot be injected into a suit by intervention
(67A C.J.S. 805), hence s u c h i n t e r v e n t i o n will not be
allowed w h e r e it would enlarge t h e issues in t h e action
a n d e x p a n d t h e scope of t h e r e m e d i e s (Big Country
Ranch Corp. vs. CA, et al., supra).
320
RULE 19 INTERVENTION SEC. 1
3. Intervention is distinguished from interpleader

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

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

complaint against allowing the intervention suit to
322
proceed despite the dismissal of the main action. In t r u t h ,

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

cosa, et al. vs. Concepcion, et al., 101 Phil. 146)
and w h e t h e r t h e failure to intervene may be deemed as
323
waiver or estoppel depends on each case (Liguez vs. CA,

et al., 102 Phil. 577), it is b e l i e v e d t h a t w h e r e t h e
intervener's rights are interwoven in the pending
case and he had due notice of t h e proceedings, he will
t h e r e a f t e r be e s t o p p e d from q u e s t i o n i n g t h e decision
rendered t h e r e i n t h r o u g h a n o t h e r action.
6. An improper denial of a motion for intervention

is correctible by a p p e a l (Ortiz vs. Trent, 13 Phil. 130;
Hospicio de San Jose, et al. vs. Piccio, et al., 99 Phil. 1039
fUnrep.J), b u t if t h e r e is g r a v e a b u s e of d i s c r e t i o n ,
m a n d a m u s will lie, where t h e r e is no other plain, speedy
and adequate remedy (Dizon vs. Romero, L-26252,
Dec. 24, 1968; Macias, et al. vs. Cruz, et al., L-28947,
Jan. 17, 1973, j o i n t l y d e c i d i n g t h e r e i n L 29235 a n d
L-30935). On t h e other hand, an improper g r a n t i n g of a
motion for intervention may be controlled by certiorari and
p r o h i b i t i o n . W h e n t h e r i g h t s of t h e p a r t y s e e k i n g to
intervene will not be prejudiced by t h e j u d g m e n t in t h e
m a i n c a s e a n d c a n be fully p r o t e c t e d in a s e p a r a t e
proceeding, the court may deny t h e intervention sought
(Pflieder vs. De Britanica, L-19077, Oct. 20, 1964).
7. For an e n u m e r a t i o n of cases wherein intervention

was held to be proper, see Batama Farmer's Cooperative
Marketing Association, et al. vs. Rosal, et al. (L-30526,
Nov. 29, 1971).
8. To w a r r a n t intervention, it m u s t be shown t h a t
t h e m o v a n t h a s legal i n t e r e s t in t h e m a t t e r in litigation
and consideration m u s t be given as to w h e t h e r or not t h e
adjudication of t h e rights of t h e original p a r t i e s may be
delayed or prejudiced, while those of t h e i n t e r v e n o r may
be protected in a s e p a r a t e proceeding. Both r e q u i r e m e n t s
m u s t concur.
The i n t e r e s t which entitles a person to intervene in a
suit m u s t be on t h e m a t t e r in litigation a n d of such direct
and immediate c h a r a c t e r t h a t t h e i n t e r v e n o r will e i t h e r
324
gain or lose by t h e direct legal operation and effect of the

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

be allowed was expressed in Sec. 2, Rule 12 as "before
or d u r i n g a t r i a l , " a n d t h i s a m b i g u i t y also gave rise
to indecisive doctrines. T h u s , inceptively it was held
t h a t a motion for leave to intervene may be filed "before
or d u r i n g a t r i a l " e v e n on t h e day w h e n t h e case is
being s u b m i t t e d for decision (Bool, et al. vs. Mendoza,
et al, 92 Phil. 892), as long as it will not unduly delay
the disposition of the case. The term "trial" was used in its
restricted sense, i.e., t h e period for the introduction of
e v i d e n c e by b o t h p a r t i e s . H e n c e , if t h e m o t i o n for
intervention was filed after the case had already been
s u b m i t t e d for decision, t h e denial thereof was p r o p e r
(Vigan Electric Light Co., Inc. vs. Arciaga, L-29207
and L-29222, July 31, 1974). However, it w a s l a t e r
held t h a t i n t e r v e n t i o n may b e allowed a t any t i m e
before the rendition of final judgment (Lichauco vs. CA,
et al, L-23842, Mar. 13. 1975). F u r t h e r , in the excep-
tional case of Director of Lands vs. CA, et al. (L-45163,
Sept. 25, 1979), the Supreme Court permitted interven-
tion in a case pending before it on appeal in order to avoid
325
RULE 19 R E M E D I A L LAW C O M P E N D I U M SECS. 3 4
injustice a n d in consideration of t h e n u m b e r of p a r t i e s
who may be affected by t h e dispute involving overlap-
ping of n u m e r o u s land titles.
2. The uncertainty in these rulings has been
eliminated by t h e p r e s e n t Sec. 2 of t h i s a m e n d e d Rule
which p e r m i t s t h e filing of t h e motion to intervene at any
time before the rendition of t h e j u d g m e n t in t h e case, in
line w i t h t h e d o c t r i n e in Lichauco above cited. T h e
justification advanced for t h i s is t h a t before j u d g m e n t is
rendered, t h e court, for good cause shown, may still allow
t h e introduction of additional evidence and t h a t is still
w i t h i n a liberal i n t e r p r e t a t i o n of t h e period for t r i a l .
Also, s i n c e n o j u d g m e n t h a s y e t b e e n r e n d e r e d , t h e
m a t t e r subject of t h e i n t e r v e n t i o n may still be readily
resolved and i n t e g r a t e d in t h e j u d g m e n t disposing of all
c l a i m s i n t h e case, a n d would not r e q u i r e a n o v e r a l l
r e a s s e s s m e n t of said claims as would be t h e case if the
j u d g m e n t had already been r e n d e r e d (see also Looyuko,
et al. vs. CA, et al, G.R. No. 102696, July 12, 2001).
S e c . 3. Pleadings-in-intervention. — T h e i n t e r v e -
n o r s h a l l file a c o m p l a i n t - i n - i n t e r v e n t i o n if he
a s s e r t s a c l a i m a g a i n s t e i t h e r o r all o f t h e o r i g i n a l
parties, or an answer-in-intervention if he unites
with the defending party in resisting a claim against
t h e l a t t e r . (2[c]a, R12)
S e c . 4. Answer to complaint-in-intervention. —
The answer to the complaint-in-intervention
s h a l l b e filed w i t h i n f i f t e e n (15) d a y s f r o m n o t i c e
of the order admitting the same, unless a different
p e r i o d i s f i x e d b y t h e c o u r t . (2[d]a, R 1 2 )
NOTES
1. Where t h e intervenor unites with t h e defendant,

he i n t e r v e n e s by filing an a n s w e r - i n - i n t e r v e n t i o n . If
326
RULE 19 INTERVENTION S E C S . 3-4
he unites with t h e plaintiff, he may file a complaint-in-

i n t e r v e n t i o n a g a i n s t t h e defendant. If he does not ally
h i m s e l f w i t h e i t h e r p a r t y h e m a y file a c o m p l a i n t -
in-intervention a g a i n s t both.
2. Sec. 4 of t h i s Rule, as amended, now requires an

answer to t h e complaint-in-intervention within 15 days
from notice of t h e o r d e r a d m i t t i n g t h e same, unless a
different period is fixed by t h e court. This changes the
procedure u n d e r t h e former Rule wherein it was optional
to file an a n s w e r to t h e complaint-in-intervention, and
also s e t s a s i d e t h e doctrine in Luna vs. Abaya, et al.
(86 Phil. 472) which held t h a t t h e r e would be no default
since u n d e r t h e t h e n existing rule the filing of the answer
was permissive. This change of procedure does not, of
course, affect t h e r u l e e n u n c i a t e d in Froilan vs. Pan
Oriental Shipping Co. (95 Phil. 905) t h a t if an a n s w e r
is v a l i d l y filed to t h e c o m p l a i n t - i n - i n t e r v e n t i o n , t h e
answering p a r t y may assert a counterclaim therein against
the intervenor.
327
RULE 20
CALENDAR OF C A S E S
S e c t i o n 1. Calendar of cases. — T h e c l e r k of
court, under the direct supervision of the judge,
s h a l l k e e p a c a l e n d a r of c a s e s for p r e - t r i a l , t h o s e
whose trials were adjourned or postponed, and
t h o s e w i t h m o t i o n s t o s e t for h e a r i n g . P r e f e r e n c e
s h a l l be g i v e n to habeas corpus c a s e s , e l e c t i o n c a s e s ,
special civil actions, and t h o s e so required by law.
( l a , R22)
NOTE
1. To e n s u r e a more efficient monitoring of cases for

both supervision a n d reportorial purposes, t h e clerk of
c o u r t i s now r e q u i r e d t o k e e p a t l e a s t four s e p a r a t e
c a l e n d a r s reflecting t h e cases for pre-trial, for trial, those
whose t r i a l s were adjourned a n d postponed, a n d those
requested to be set for h e a r i n g . The so-called preferen-
tial cases m u s t also be t a k e n into account. This section
further makes it the duty of the presiding judge to
exercise direct supervision over those m a t t e r s .
S e c . 2. Assignment of cases. — T h e a s s i g n m e n t
of cases to the different branches of a court shall
be d o n e e x c l u s i v e l y by raffle. The a s s i g n m e n t
shall be done in open session of which adequate
notice shall be g i v e n so as to afford i n t e r e s t e d
p a r t i e s o p p o r t u n i t y t o b e p r e s e n t . ( 7 a , R22)
NOTE
1. The a s s i g n m e n t of cases is required to be done

exclusively by raffle, a n d t h i s s e t s aside t h e c o n t r a r y
ruling in Commissioner of Immigration vs. Reyes
328
RULE 20 CALENDAR OF CASES SEC. 2
(L-23826, Dec. 28, 1964). Also, t h i s provision of t h e

Rule r e i t e r a t e s t h e r e q u i r e m e n t in some circulars of the
S u p r e m e Court t h a t t h e raffle of cases shall be done in
open session with prior a d e q u a t e notice to the interested
parties.
329
RULE 21
SUBPOENA
S e c t i o n 1. Subpoena and subpoena duces tecum. —

S u b p o e n a is a p r o c e s s d i r e c t e d to a p e r s o n
requiring him to attend and to testify at the
h e a r i n g or the trial of an action, or at any investi-
g a t i o n c o n d u c t e d b y c o m p e t e n t a u t h o r i t y , o r for t h e
taking of his deposition. It may also require him
to bring with him any books, documents, or
other things under his control, in which case it is
c a l l e d a s u b p o e n a duces tecum, ( l a , R23)
NOTE
1. The s u b p o e n a referred to in t h e first s e n t e n c e

of t h i s s e c t i o n is d i s t i n c t i v e l y c a l l e d a s u b p o e n a ad
testificandum. T h i s is t h e t e c h n i c a l a n d d e s c r i p t i v e
t e r m for t h e o r d i n a r y s u b p o e n a (Catty vs. Brobelbank,
124 N.J. Law 360, 12 A. 2d 128).
S e c . 2. By whom issued. — The subpoena may

be i s s u e d by:
a) The court before w h o m the witness is
required to attend;
b) The court of the place where the deposition
is to be taken;
c ) T h e officer o r b o d y a u t h o r i z e d b y l a w t o d o
so in connection with investigations conducted by
s a i d officer or body; or
d) Any J u s t i c e of the S u p r e m e Court or of
the Court of Appeals in any case or investigation
pending within the Philippines.
330
RULE 21 SUBPOENA SEC. 3
W h e n a p p l i c a t i o n for a s u b p o e n a to a p r i s o n e r
i s m a d e , t h e j u d g e o r officer s h a l l e x a m i n e a n d s t u d y
carefully such application to determine whether the
s a m e is m a d e for a v a l i d p u r p o s e .
N o p r i s o n e r s e n t e n c e d t o d e a t h , reclusion
perpetua or life i m p r i s o n m e n t a n d w h o is c o n f i n e d
in any penal institution shall be brought outside
t h e s a i d p e n a l i n s t i t u t i o n for a p p e a r a n c e o r
attendance in any court unless authorized by the
S u p r e m e Court. (2a, R23)
NOTES
1. The e n u m e r a t i o n of the p e r s o n s who are

authorized to issue subpoenas has been expanded by the
inclusion of t h e officer or body a u t h o r i z e d by law in
connection with investigations conducted by them. Also,
a municipal t r i a l court may now issue a subpoena for
the a t t e n d a n c e before it of a prisoner even if he is not
confined in a m u n i c i p a l jail, u n l e s s such p r i s o n e r h a s
b e e n s e n t e n c e d to d e a t h , reclusion perpetua or life
i m p r i s o n m e n t and his desired a p p e a r a n c e has not
been authorized by t h e S u p r e m e Court.
2. The last two p a r a g r a p h s of this section are

precautionary m e a s u r e s evolved from judicial experience.
These w e r e t a k e n from A d m i n i s t r a t i v e Circular No. 6
of the S u p r e m e Court, dated December 5, 1977.
S e c . 3. Form and contents. — A s u b p o e n a s h a l l

state the name of the court and the title of the
action or investigation, shall be directed to the
person whose attendance is required, and in the
c a s e of a s u b p o e n a duces tecum, it s h a l l a l s o
contain a reasonable description of the books,
documents or things demanded which must appear
to t h e c o u r t prima facie r e l e v a n t . (3a, R23)
331
R U L E 21 R E M E D I A L LAW C O M P E N D I U M SECS. 4, 5
S e c . 4. Quashing a subpoena. — T h e c o u r t m a y
q u a s h a s u b p o e n a duces tecum u p o n m o t i o n
promptly made and, in any event, at or before the
time specified therein if it is unreasonable and
oppressive, or the relevancy of the books,
documents or things does not appear, or if the
person in whose behalf the subpoena is issued
fails to advance the reasonable cost of the
production thereof.
T h e c o u r t m a y q u a s h a s u b p o e n a ad testifican-
dum o n t h e g r o u n d t h a t t h e w i t n e s s i s n o t b o u n d
thereby. In either case, the subpoena may be
quashed on the ground that the w i t n e s s fees and
kilometrage allowed by these Rules were not
t e n d e r e d w h e n t h e s u b p o e n a w a s s e r v e d . (4a, R23)
NOTE
1. A subpoena duces tecum may be q u a s h e d upon

proof t h a t (a) it is u n r e a s o n a b l e and oppressive, (b) t h e
articles sought to be produced do not a p p e a r prima facie
to be r e l e v a n t to t h e issues, a n d (c) t h e person a s k i n g
for t h e s u b p o e n a d o e s n o t a d v a n c e t h e c o s t for t h e
production of t h e articles desired.
The second p a r a g r a p h of Sec. 4 was added to m a k e it
explicit t h a t a s u b p o e n a ad testificandum m a y also be
q u a s h e d if t h e witness is not bound thereby (see Sec. 10).
Also, it was considered necessary to r e i t e r a t e herein, by
m a k i n g n o n - c o m p l i a n c e a g r o u n d for q u a s h a l of a
s u b p o e n a duces tecum, t h a t t h e w i t n e s s fees a n d
kilometrage should be tendered upon service of the
s u b p o e n a (see Sec. 6), w h i c h r e q u i r e m e n t is often
deliberately or unknowingly overlooked.
S e c . 6. Subpoena for depositions. — P r o o f of

s e r v i c e of a n o t i c e to t a k e a d e p o s i t i o n , as p r o v i d e d
i n s e c t i o n s 1 5 a n d 2 5 o f R u l e 23, s h a l l c o n s t i t u t e
332
RULE 21 SUBPOENA S E C S . 6-8
s u f f i c i e n t a u t h o r i z a t i o n for t h e i s s u a n c e o f
s u b p o e n a s for t h e p e r s o n s n a m e d i n s a i d n o t i c e
by the clerk of the court of the place in which the
d e p o s i t i o n is to be taken. The clerk shall not,
h o w e v e r , i s s u e a s u b p o e n a duces tecum to a n y s u c h
p e r s o n w i t h o u t a n o r d e r o f t h e c o u r t . (5a, R23)
S e c . 6. Service. — S e r v i c e of a s u b p o e n a
shall be m a d e in the same manner as personal or
substituted service of summons. The original
shall be exhibited and a copy thereof delivered
to the person on w h o m it is served, tendering to
h i m t h e f e e s for o n e day's a t t e n d a n c e a n d t h e
kilometrage allowed by these Rules, except that,
w h e n a s u b p o e n a is i s s u e d by or on behalf of
the R e p u b l i c of t h e P h i l i p p i n e s or an officer or
agency thereof, the t e n d e r need not be made. The
service must be made so as to allow the witness
a r e a s o n a b l e t i m e for p r e p a r a t i o n a n d t r a v e l t o
t h e p l a c e of a t t e n d a n c e . If t h e s u b p o e n a is duces
tecum, t h e r e a s o n a b l e c o s t o f p r o d u c i n g t h e b o o k s ,
documents or things demanded shall also be
t e n d e r e d . (6a, R23)
S e c . 7. Personal appearance in court. — A p e r s o n

present in court before a judicial officer may
be required to testify as if he were in attendance
upon a s u b p o e n a i s s u e d by such court or
officer. (10, R23)
S e c . 8. Compelling attendance. — In c a s e of
f a i l u r e of a w i t n e s s to a t t e n d , t h e c o u r t or j u d g e
issuing the subpoena, upon proof of the service
thereof and of the failure of the witness, may
issue a warrant to the sheriff of the province,
or his deputy, to arrest the witness and bring
h i m before t h e c o u r t o r officer w h e r e h i s a t t e n d a n c e
333
RULE 21 R E M E D I A L LAW C O M P E N D I U M S E C S . 9, 10
is required, and the cost of such warrant and

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

subpoena by reason of t h e distance from t h e residence of
t h e witness to the place w h e r e he is to testify is sometimes
334
RULE 21 SUBPOENA S E C . 10
called t h e viatory right of a witness. The p r e s e n t provi-

sion, unlike its predecessor, does not distinguish as to
w h e t h e r or not t h e witness resides in t h e same province
as t h e place w h e r e he is required to go a n d testify or
produce documents. W h a t is now determinative is t h a t
the distance b e t w e e n both places does not exceed
100 kilometers by t h e ordinary course of travel, generally
by o v e r l a n d t r a n s p o r t a t i o n . T h e former d i s t a n c e of
50 kilometers h a s been increased in view of t h e faster
and more available m e a n s of travel now obtaining in t h e
country.
2. In t h e c a s e of Petition for Contempt Against
Benjamin Ravanera (L-15902, Dec. 23, 1964), the Supreme
Court declined to p a s s on t h e issue as to w h e t h e r t h i s
viatory right is available in criminal cases. However, in
the later case of People vs. Montejo (L-24154, Oct. 31, 1967),
it was held t h a t t h i s right is available only in civil cases.
335
RULE 22
COMPUTATION OF TIME
S e c t i o n 1. How to compute time. — In c o m p u t i n g

any period of time prescribed or allowed by these
Rules, or by order of the court, or by any applicable
statute, the day of the act or event from which the
designated period of time begins to run is to be
excluded and the date of performance included.
If the last day of the period, as thus computed,
f a l l s on a S a t u r d a y , a S u n d a y , or a l e g a l h o l i d a y
in the place where the court sits, the time shall
n o t r u n u n t i l t h e n e x t w o r k i n g d a y . (n)
NOTES
1. The p e r t i n e n t provisions of t h e Civil Code s t a t e :

"Art. 13. W h e n t h e laws speak of y e a r s , m o n t h s ,
days or nights, it shall be understood t h a t y e a r s are
of t h r e e h u n d r e d sixty-five d a y s each; m o n t h s , of
t h i r t y days; days, of twenty-four h o u r s ; a n d nights
from s u n s e t to s u n r i s e .
If m o n t h s a r e d e s i g n a t e d by t h e i r n a m e , they
shall be computed by t h e n u m b e r of days which they
respectively have.
In c o m p u t i n g a p e r i o d , t h e first day s h a l l be
excluded, a n d t h e last day included."
2. This Rule refers to t h e computation of a period of
time a n d not to a specific date fixed for t h e performance
of an act. It a p p l i e s only w h e n t h e period of t i m e is
p r e s c r i b e d by t h e s e Rules, by order of t h e court or by
any applicable statute. It adopts the rule on pretermission
of h o l i d a y s , t h a t is, t h e exclusion of s u c h h o l i d a y s in
t h e c o m p u t a t i o n of t h e period, w h e n e v e r t h e first two
conditions s t a t e d in t h i s section are p r e s e n t .
336
RULE 22 COMPUTATION OF TIME
3. Thus, t h e method of computation u n d e r t h i s Rule

does not generally apply to those provided in a contract
(Art. 1159, Civil Code), a specific d a t e s e t for a court
hearing or a foreclosure sale (Rural Bank vs. CA, et al.,
L-32116, April 21,1981) or prescriptive (not reglementary)
periods specifically provided by the Revised P e n a l
Code for felonies t h e r e i n (Yapdiangco vs. Buencamino,
L-28841, June 24, 1983).
4. Since this Rule is likewise based on the provisions

of Art. 13 of t h e Civil Code, t h e m e a n i n g of t h e t e r m s
t h e r e i n are also applicable. Accordingly, a pleading filed
on t h e l a s t day of t h e r e g l e m e n t a r y period b u t after
office h o u r s is still considered seasonably filed if duly
mailed (Caltex [Phil.], Inc. vs. Katipunan Labor Union,
98 Phil. 340) or is received by a person authorized to do
so (see De Chavez vs. Ocampo, et al., 66 Phil. 76), since
a day consists of 24 hours.
5. As e x p l a i n e d h e r e a f t e r in Rule 39, t h e period

of redemption of real properties sold at execution sale is
12 months, hence following t h e provisions of this Rule in
relation to t h e aforequoted Art. 13 of t h e Civil Code, the
redemption period is actually 360 days. In computing when
such period begins to r u n or ends, the provisions of this
Rule govern.
6. In c o n s i d e r i n g t h e a p p l i c a t i o n of t h e r u l e on
p r e t e r m i s s i o n of holidays, t h e second sentence of t h i s
section refers to t h e place where the court sits. This is
because c e r t a i n non-working holidays, or special days
as they were sometimes termed, are applicable to and
observed only in some p a r t i c u l a r places or regions of
the country.
7. In Labad vs. The University of Southwestern
Philippines, et al. (G.R. No. 139665, A u g . 9, 2001),
this section a n d t h e s u b s e q u e n t ramifications a r i s i n g
therefrom were explained by the Supreme Court as
337
h e r e i n s u b s t a n t i a l l y indicated, t h u s : "Based on Sec. 1,

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

computation of periods as applied to pleadings, see t h e
notes u n d e r Sec. 6, Rule 11.
338
RULE 22 COMPUTATION OF TIME SEC. 2
9. The much later case of Commissioner of Internal

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

understood to be twelve calendar months; "month" of
thirty days unless it refers to a specific month in which
case it shall be computed according to the n u m b e r of
days t h e specific month contains; "day" to a day of
twenty-four hours; and "night" from sunrise to sunset.
339
It e x p l a i n e d t h a t a c a l e n d a r m o n t h is "a m o n t h
designated in t h e calendar without regard to t h e n u m b e r
of days it may contain. It is the period of time r u n n i n g
from t h e beginning of a certain n u m b e r e d day up to, but
not including, the corresponding numbered day of the next
month, and if t h e r e is not a sufficient n u m b e r of days in
t h e next month, t h e n up to and including t h e last day of
t h a t m o n t h . T o i l l u s t r a t e , one c a l e n d a r m o n t h from
D e c e m b e r 3 1 , 2007 will be from J a n u a r y 1, 2 0 0 8 to
J a n u a r y 3 1 , 2008; one calendar month from J a n u a r y 31,
2008 will be from F e b r u a r y 1, 2008 u n t i l F e b r u a r y 29,
2008."
Since t h e r e obviously exists a manifest incompatibility

in t h e m a n n e r of computing legal periods u n d e r t h e Civil
Code a n d t h e A d m i n i s t r a t i v e Code of 1987, t h e Court
declared t h a t t h e aforecited provision of E.O. 292, being
t h e more r e c e n t law, governs t h e c o m p u t a t i o n of legal
periods. Since t h e two-year prescriptive period u n d e r t h e
facts of t h i s case consisted of 24 c a l e n d a r m o n t h s and
r e s p o n d e n t ' s claim was filed on t h e last day of t h e 24th
c a l e n d a r m o n t h , i t w a s c o n s e q u e n t l y filed w i t h i n t h e
prescriptive period.
10. T h i s t a x c a s e u n d e r c o m m e n t a f f o r d s t h e
opportunity to invite a t t e n t i o n to some of t h e holdings of
t h e S u p r e m e Court in National Marketing Corporation,
vs. Tecson, et al. (139 Phil. 584) on t h e a n t e c e d e n t s of
Art. 13 of t h e Civil Code which limits t h e connotation of
each "year" t h e r e i n to 365 days. Prior to t h e Civil Code of
Spain, t h e S p a n i s h S u p r e m e Court h a d held t h a t when
t h e law spoke of m o n t h s , it m e a n t a m o n t h of 30 days, not
t h e "natural," "solar," "calendar," (or "civil") m o n t h s in t h e
absense of express provisions to the contrary. This concept
was modified in t h e Philippines by Sec. 13 of our Revised
Administrative Code, p u r s u a n t to which a "month" shall
be understood to refer to a "calendar" m o n t h . With t h e
e n a c t m e n t of our Civil Code, we r e v e r t e d to t h e rule in
340
RULE 22 COMPUTATION OF TIME SEC. 1
the S p a n i s h Civil Code, b u t with t h e addition of "years,"

which w a s o r d a i n e d t o m e a n 365 d a y s . T h e p r e s e n t
provisions of E . O . 292 a g a i n a d o p t s t h a t concept of a
calendar m o n t h , w i t h t h e modification of how many shall
compose a year.
1 1 . As e a r l i e r observed, t h e method of computation

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

r e l e v a n t c r i t i q u e b a s e d o n our own legal s y s t e m a n d
bibliography.
S e c . 2. Effect of interruption. — S h o u l d an a c t
be done which effectively interrupts the running
of the period, the allowable period after such
i n t e r r u p t i o n shall start to run on t h e day after
notice of t h e c e s s a t i o n of the c a u s e thereof.
The day of the act that caused the interruption
shall be excluded in the computation of the period,
(n)
NOTE
1. The original draft of this section referred to an

act or event which effectively i n t e r r u p t s t h e r u n n i n g of
t h e period of time contemplated in t h e preceding section.
T h e e v e n t r e f e r r e d to w o u l d i n c l u d e force majeure,
fortuitous e v e n t s or calamities. The question, of course,
is t h e d e t e r m i n a t i o n of w h e n t h e event occurred a n d was
t e r m i n a t e d , a n d how t h e p a r t y affected would know or be
made a w a r e of t h e period of such i n t e r r u p t i o n . It was
believed t h a t notice thereof can be given by t h e court to
t h e p a r t i e s , on a case to case basis.
T h e word "event" w a s accordingly e l i m i n a t e d a n d
only t h e "act" done was r e t a i n e d as an express cause for
t h e i n t e r r u p t i o n since t h a t fact would obviously be made
k n o w n or notice t h e r e o f given to t h e p a r t y concerned.
Parenthetically, the interruption of the reglementary
period as u n d e r s t o o d in t h i s section does not have t h e
s a m e concept as i n t e r r u p t i o n for p u r p o s e s of t h e s t a t u t e
of limitations or prescriptive periods in t h e Civil Code.
342
RULE 23
DEPOSITIONS PENDING ACTION
Section 1. Depositions pending action, when

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

discovery t h a t m a y be resorted to by a p a r t y to an action,
viz.:
a. Depositions pending action (Rule 23);
b. D e p o s i t i o n s before a c t i o n or p e n d i n g a p p e a l
(Rule 24);
c. I n t e r r o g a t o r i e s to p a r t i e s (Rule 25);
d. Admission by adverse party (Rule 26);
e. Production or inspection of documents or things
(Rule 27); a n d
f. P h y s i c a l a n d m e n t a l e x a m i n a t i o n of p e r s o n s
(Rule 28).
343
Rule 29 provides for the legal consequences for t h e

refusal of a p a r t y to comply with such modes of discovery
lawfully resorted to by t h e adverse p a r t y .
2. In criminal cases, the t a k i n g of t h e deposition of
witnesses for t h e prosecution was formerly authorized by
Sec. 7, Rule 119 for t h e p u r p o s e of p e r p e t u a t i n g t h e
evidence to be p r e s e n t e d at t h e trial, without a similar
provision for defense w i t n e s s e s . However, in t h e 1985
R u l e s o n C r i m i n a l P r o c e d u r e , only t h e c o n d i t i o n a l
e x a m i n a t i o n , a n d not a deposition, of p r o s e c u t i o n
witnesses w a s p e r m i t t e d (Sec. 7, Rule 119) and t h i s was
followed in t h e l a t e s t revision (Sec. 15, Rule 119).
3. Depositions a r e classified into:

a. Depositions on oral e x a m i n a t i o n a n d depositions
upon w r i t t e n i n t e r r o g a t o r i e s ; or
b. D e p o s i t i o n s de bene esse a n d d e p o s i t i o n s in
perpetuam rei memoriam.
Depositions de bene esse a r e those t a k e n for purposes
of a p e n d i n g action and a r e r e g u l a t e d by Rule 23, while
depositions in perpetuam rei memoriam a r e those t a k e n
to p e r p e t u a t e evidence for p u r p o s e s of an a n t i c i p a t e d
action or further proceedings in a case on appeal a n d a r e
now r e g u l a t e d by Rule 24.
4. The court may d e t e r m i n e w h e t h e r t h e deposition

should be taken upon oral examination or written
i n t e r r o g a t o r i e s to p r e v e n t a b u s e or h a r a s s m e n t (De los
Reyes vs. CA, et al., L-27263, Mar. 17, 1975).
5. Trial judges should encourage the use of the

different modes of discovery since a knowledge of t h e
evidence of t h e adverse p a r t y may facilitate an amicable
s e t t l e m e n t or expedite t h e t r i a l of a case. However, since
resort t h e r e t o is not m a n d a t o r y , if t h e p a r t i e s choose not
to avail of discovery procedures, t h e p r e - t r i a l should be
s e t a c c o r d i n g l y (Koh vs. IAC, et al., G.R. No. 71388,
344
RULE 23 DEPOSITIONS PENDING ACTION SEC. 1
Sept. 23, 1986). This impasse is sought to be partially

remedied by t h e revised Rules.
6. It is t h e d u t y of each contending p a r t y to lay

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

availability a n d operation of a liberal discovery procedure
are: (1) it is of g r e a t assistance in ascertaining the t r u t h
and preventing perjury because the witness is examined
while his memory is still fresh, he is generally not coached,
he cannot at a l a t e r date contradict his deposition, and
345
his deposition is preserved in case he becomes unavailable;

(2) it is an effective m e a n s of d e t e c t i n g a n d exposing
fake, f r a u d u l e n t a n d s h a m claims a n d defenses; (3) it
m a k e s a v a i l a b l e i n a s i m p l e , c o n v e n i e n t a n d often
inexpensive way facts which otherwise could not have
been proved later; (4) it educates the p a r t i e s in advance
of t r i a l on t h e real values of their claims and defenses,
t h e r e b y e n c o u r a g i n g s e t t l e m e n t s o u t of c o u r t ; (5) it
expedites t h e disposal of litigations, saves t h e time of t h e
court and helps clear the dockets; (6) it safeguards against
surprise at t h e trial, prevents delays, simplifies the issues,
and thereby expedites t h e trial; and (7) it facilitates both
the p r e p a r a t i o n a n d t r i a l of cases (Fortune Corporation
vs. CA, et al., G.R. No. 108119, Jan. 19, 1994).
8. Sec. 1 of t h i s Rule p r o v i d e s t h a t a deposition

may be resorted to after jurisdiction h a s been obtained
over any defendant, not all defendants. Leave of court is
not necessary to t a k e a deposition after an a n s w e r to the
complaint h a s been filed, but such leave is required w h e r e
no a n s w e r h a s yet been filed (even if jurisdiction h a s been
obtained over any defendant), since before t h e filing of
t h e a n s w e r , l e a v e o f c o u r t m a y b e g r a n t e d b u t only
in e x c e p t i o n a l or u n u s u a l s i t u a t i o n s (Republic vs.
Sandiganbayan, et al., G.R. No. 112710, May 30, 2001).
S e c . 2. Scope of examination. — U n l e s s o t h e r w i s e
ordered by the court as provided by section 16 or
18 of this Rule, the deponent may be examined
regarding any matter, not privileged, which is
relevant to the subject of the pending action,
whether relating to the claim or defense of any
other party, including the existence, description,
nature, custody, condition, and location of any
books, documents, or other tangible things and
the identity and location of persons having
k n o w l e d g e o f r e l e v a n t f a c t s . (2, R24)
346
RULE 23 DEPOSITIONS PENDING ACTION S E C S . 3, 4
S e c . 3. Examination and cross-examination. —

Examination and cross-examination of deponents
m a y p r o c e e d a s p e r m i t t e d a t t h e trial u n d e r s e c t i o n s
3 to 18 of R u l e 132. (3a, R24)
NOTE
1. The officer before whom t h e deposition is t a k e n

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

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

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

tution of p a r t i e s d o e s not affect the right to use
depositions previously taken; and, w h e n an action
has been dismissed and another action involving
the same subject is afterward brought b e t w e e n the
same parties or their representatives or successors
i n i n t e r e s t , all d e p o s i t i o n s l a w f u l l y t a k e n a n d d u l y
349
filed i n t h e f o r m e r a c t i o n m a y b e u s e d i n t h e l a t t e r
a s i f o r i g i n a l l y t a k e n t h e r e f o r . (6, R24)
S e c . 6. Objections to admissibility. — S u b j e c t to
the provisions of section 29 of this Rule, objection
may be made at the trial or h e a r i n g to receiving in
e v i d e n c e a n y d e p o s i t i o n o r p a r t t h e r e o f for a n y
reason which would require the exclusion of
the e v i d e n c e if the witness were then present and
t e s t i f y i n g . (6, R24)
S e c . 7. Effect of taking depositions. — A p a r t y

shall not be d e e m e d to make a person his own
w i t n e s s for a n y p u r p o s e b y t a k i n g h i s d e p o s i t i o n .
(7, R24)
S e c . 8. Effect of using depositions. — T h e i n t r o -

duction in evidence of the deposition or any
p a r t t h e r e o f for a n y p u r p o s e o t h e r t h a n t h a t o f
contradicting or impeaching the deponent makes
the deponent the witness of the party introducing
the deposition, but this shall not apply to the use
by an adverse party of a deposition as described in
p a r a g r a p h (b) of s e c t i o n 4 of t h i s R u l e . (8, R24)
S e c . 9. Rebutting deposition. — At t h e t r i a l or
hearing, any party may rebut any relevant evidence
c o n t a i n e d in a deposition w h e t h e r introduced by
h i m o r b y a n y o t h e r p a r t y . (9, R24)
NOTE
1. The introduction of t h e deposition binds t h e p a r t y

who introduces it, since he thereby m a k e s t h e deponent
his witness, except (a) if it is introduced to impeach or
contradict t h e witness, or (b) if it is t h e deposition of an
opposing p a r t y .
350
RULE 23 D E P O S I T I O N S P E N D I N G ACTION SECS. 10-11, 12
S e c . 10. Persons before whom deposition may be

taken within the Philippines. —- W i t h i n t h e P h i l i p -
pines, depositions may be taken before any
judge, notary public, or the person referred to in
s e c t i o n 14 hereof. (10a, R24)
S e c . 11. Persons before whom depositions may

be taken in foreign countries. — In a f o r e i g n s t a t e or
c o u n t r y , d e p o s i t i o n s m a y b e t a k e n (a) o n n o t i c e
before a s e c r e t a r y of e m b a s s y or legation,
consul general, consul, vice-consul, or consular
a g e n t o f t h e R e p u b l i c o f t h e P h i l i p p i n e s ; (b) b e f o r e
such person or officer as may be appointed by
c o m m i s s i o n o r u n d e r l e t t e r s r o g a t o r y ; o r (c) t h e
p e r s o n r e f e r r e d to in s e c t i o n 14 hereof. (11a, R24)
NOTE
1. These two sections have been amended to include,

among t h e persons before whom depositions may be taken,
any person authorized to a d m i n i s t e r o a t h s and chosen or
stipulated upon in writing by t h e parties.
S e c . 12. Commission or letters rogatory. — A

commission or letters rogatory shall be issued only
w h e n necessary or convenient, on application and
notice, and on such terms and with such direction
as are just and appropriate. Officers may be
designated in notices or commissions either by
name or descriptive title and letters rogatory may
be addressed to the appropriate judicial authority
in t h e f o r e i g n c o u n t r y . (12a, R24)
NOTES
1. A commission is addressed to any a u t h o r i t y in

a f o r e i g n c o u n t r y a u t h o r i z e d t h e r e i n t o t a k e down
depositions and t h e t a k i n g of such deposition is subject to
351
the rules laid down by the court issuing t h e commission.

L e t t e r s rogatory are addressed to a judicial a u t h o r i t y in
t h e foreign c o u n t r y a n d t h e t a k i n g of such deposition
is subject to t h e rules laid down by such foreign judicial
authority (see The Signe, D.C. La., 37F. Supp. 819, 820).
L e t t e r s rogatory are generally resorted to when t h e r e is
difficulty or impossibility of obtaining t h e deposition by
commission (18 C.J. 653).
2. A commission may be defined as an i n s t r u m e n t

issued by a court of justice, or other competent tribunal,
to authorize a person to t a k e depositions or do any other
act by a u t h o r i t y of such court or t r i b u n a l . Letters
rogatory, on t h e other hand, are defined as i n s t r u m e n t s
s e n t in t h e n a m e and by a u t h o r i t y of a judge or court to
a n o t h e r , r e q u e s t i n g t h e l a t t e r to cause to be examined,
upon i n t e r r o g a t o r i e s filed in a cause pending before t h e
former, a witness who is within the jurisdiction of the judge
or court to whom such l e t t e r s a r e a d d r e s s e d . U n d e r our
Rules, a commission is a d d r e s s e d to officers designated
e i t h e r by n a m e or descriptive title, while l e t t e r s rogatory
a r e a d d r e s s e d to some a p p r o p r i a t e judicial a u t h o r i t y in
t h e foreign s t a t e . L e t t e r s rogatory may be applied for and
issued only after a commission h a s been r e t u r n e d
u n e x e c u t e d (Dasmarinas Garments, Inc. vs. Reyes, etc.,
et al., supra).
S e c . 13. Disqualification by interest. — No

d e p o s i t i o n s h a l l be t a k e n b e f o r e a p e r s o n w h o is a
relative within the sixth degree of consanguinity
or affinity, or e m p l o y e e or counsel of any of the
parties; or w h o is a relative within the same degree,
or employee of such counsel, or w h o is financially
i n t e r e s t e d i n t h e a c t i o n . (13a, R24)
S e c . 14. Stipulations regarding taking of deposi-

tions. — I f t h e p a r t i e s s o s t i p u l a t e i n w r i t i n g ,
d e p o s i t i o n s may be t a k e n before any p e r s o n autho-
352
RULE 23 DEPOSITIONS PENDING ACTION SECS. 15-16
rized to administer oaths, at any time or place, in

accordance with these Rules, and when so taken
m a y b e u s e d l i k e o t h e r d e p o s i t i o n s . (14a, R24)
NOTE
1. As earlier explained, t h e p a r t i e s may stipulate in

writing for t h e t a k i n g of depositions before any person
authorized to a d m i n i s t e r oaths, w h e t h e r the deposition is
to be t a k e n in the Philippines or in a foreign country. While
an equivalent of Sec. 14 was also provided in the former
Rules, it was stated therein t h a t the deposition before such
person may be t a k e n "upon any notice, and in any
manner." As a p r u d e n t course of action, t h a t p h r a s e has
been r e p l a c e d b y a n a m e n d m e n t r e q u i r i n g t h a t s a i d
depositions be t a k e n in accordance with these Rules.
S e c . 16. Deposition upon oral examination; notice;

time and place. — A p a r t y d e s i r i n g to t a k e t h e d e p o -
sition of any person upon oral examination shall
give reasonable notice in writing to every other
party to the action. The notice shall state the time
a n d p l a c e for t a k i n g t h e d e p o s i t i o n a n d t h e n a m e
and address of each person to be examined, if
known, and if the name is not known, a general
description sufficient to identify him or the particu-
lar c l a s s o r g r o u p t o w h i c h h e b e l o n g s . O n m o t i o n
of any party upon w h o m the notice is served, the
c o u r t m a y for c a u s e s h o w n e n l a r g e o r s h o r t e n t h e
t i m e . (15, R24).
S e c . 16. Orders for the protection of parties and

deponents. — A f t e r n o t i c e is s e r v e d for t a k i n g a
deposition by oral examination, upon motion
seasonably made by any party or by the person to
b e e x a m i n e d a n d for g o o d c a u s e s h o w n , t h e c o u r t
in which the action is pending may make an
order that the deposition shall not be taken, or that
353
it may be taken only at some designated place other

than that stated in the notice, or that it may be
taken only on written interrogatories, or that
certain matters shall not be inquired into, or that
the scope of the examination shall be held with no
one present except the parties to the action and
their officers or counsel, or that after b e i n g sealed
the deposition shall be opened only by order of the
court, or that secret processes, developments, or
research need not be disclosed, or that the parties
s h a l l s i m u l t a n e o u s l y file s p e c i f i e d d o c u m e n t s o r
information enclosed in sealed envelopes to be
o p e n e d as directed by the court; or the court may
make any other order which justice requires to
protect the party or witness from annoyance,
e m b a r r a s s m e n t , o r o p p r e s s i o n . (16a, R24)
S e c . 17. Record of examination; oath; objections. —

T h e officer before w h o m t h e d e p o s i t i o n i s t o b e t a k e n
shall put the witness on oath and shall personally,
or by someone acting under his direction and in
his presence, record the testimony of the witness.
The testimony shall be taken stenographically
u n l e s s t h e p a r t i e s a g r e e o t h e r w i s e . All o b j e c t i o n s
made at the time of the examination to the
q u a l i f i c a t i o n s o f t h e officer t a k i n g t h e d e p o s i t i o n ,
o r t o t h e m a n n e r o f t a k i n g it, o r t o t h e e v i d e n c e
presented, or to the conduct of any party, and any
other objection to the proceedings, shall be noted
by the officer upon the deposition. Evidence
objected to shall be taken subject to the objections.
In lieu of participating in the oral examination,
parties served with notice of taking a deposition
may transmit written interrogatories to the
officers, w h o shall propound t h e m to the w i t n e s s
a n d r e c o r d t h e a n s w e r s verbatim. (17, R24)
354
S e c . 18. Motion to terminate or limit examination.

— At any time during the taking of the deposition,
on motion or petition of any party or of the
deponent and upon a showing that the examina-
tion is b e i n g c o n d u c t e d in bad faith or in s u c h
manner as unreasonably to annoy, embarrass, or
oppress the d e p o n e n t or party, the court in w h i c h
t h e a c t i o n i s p e n d i n g o r t h e R e g i o n a l Trial C o u r t
of the place where the deposition is being taken may
order the officer c o n d u c t i n g the e x a m i n a t i o n to
cease forthwith from taking the deposition, or may
limit the scope and manner of the taking of the
deposition, as provided in section 16 of this Rule.
If the order made terminates the examination, it
shall be resumed thereafter only upon the order of
the court in which the action is pending. Upon de-
mand of the objecting party or deponent, the
t a k i n g o f t h e d e p o s i t i o n s h a l l b e s u s p e n d e d for t h e
t i m e n e c e s s a r y to m a k e a n o t i c e for an o r d e r . In
granting or refusing such order, the court may
impose upon either party or upon the witness the
requirement to pay such costs or expenses as the
c o u r t m a y d e e m r e a s o n a b l e . (18a, R24)
S e c . 19. Submission to witness; changes; signing. —

When the t e s t i m o n y is fully transcribed, the
d e p o s i t i o n s h a l l b e s u b m i t t e d t o t h e w i t n e s s for
examination and shall be read to or by him, unless
such examination and reading are waived by the
witness and by the parties. A n y c h a n g e s i n form
or substance which the witness desires to make
s h a l l b e e n t e r e d u p o n t h e d e p o s i t i o n b y t h e officer
with a s t a t e m e n t of the reasons given by the
w i t n e s s for m a k i n g t h e m . T h e d e p o s i t i o n s h a l l
then be signed by the witness, unless the parties
by stipulation waive the signing or the witness
is ill or c a n n o t be f o u n d or r e f u s e s to s i g n . If t h e
355
d e p o s i t i o n i s n o t s i g n e d b y t h e w i t n e s s , t h e officer
s h a l l s i g n i t a n d s t a t e o n t h e r e c o r d t h e fact o f t h e
waiver or of the illness or absence of the witness or
the fact of t h e refusal to sign t o g e t h e r w i t h the
reason given therefor, if any, and the deposition
m a y t h e n b e u s e d a s fully a s t h o u g h s i g n e d , u n l e s s
o n a m o t i o n t o s u p p r e s s u n d e r s e c t i o n 2 9 (f) o f t h i s
R u l e , t h e c o u r t h o l d s t h a t t h e r e a s o n s g i v e n for
the refusal to sign require rejection of the deposi-
t i o n i n w h o l e o r i n part. (19a, R24)
S e c . 20. Certification and filing by officer. — T h e

officer shall certify on the d e p o s i t i o n that the
witness was duly sworn to by him and that the
deposition is a true record of the t e s t i m o n y given
by the witness. He shall then securely seal the
deposition in an envelope indorsed with the title of
the action and marked "Deposition of (here insert
t h e n a m e o f w i t n e s s ) " a n d s h a l l p r o m p t l y file i t w i t h
the court in which the action is pending or send it
b y r e g i s t e r e d m a i l t o t h e c l e r k t h e r e o f for filing. (20,
R24)
S e c . 21. Notice of filing. — T h e o f f i c e r t a k i n g t h e

d e p o s i t i o n shall give prompt notice of its filing to
all t h e p a r t i e s . (21, R24)
S e c . 22. Furnishing copies. — U p o n p a y m e n t of

reasonable charges therefor, the officer shall
furnish a copy of the deposition to any party or to
t h e d e p o n e n t . (22, R24)
S e c . 23. Failure to attend of party giving notice. —

If the party giving the notice of the t a k i n g of a depo-
sition fails to attend and proceed t h e r e w i t h and
another attends in person or by counsel pursuant
to the notice, the court may order the party giving
356
the notice to pay such other party the amount of

the reasonable e x p e n s e s incurred by him and his
counsel in so attending, including reasonable
a t t o r n e y ' s f e e s . (23a, R24)
S e c . 24. Failure of party giving notice to serve sub-

poena. — If t h e p a r t y g i v i n g t h e n o t i c e of t h e t a k i n g
of a d e p o s i t i o n of a w i t n e s s fails to s e r v e a s u b p o e n a
u p o n h i m a n d t h e w i t n e s s b e c a u s e o f s u c h failure
does not attend, and if another party attends in
person or by counsel because he expects the depo-
sition of that witness to be taken, the court may
order the party giving the notice to pay such other
party the amount of the reasonable expenses
incurred by him and his counsel in so attending,
i n c l u d i n g r e a s o n a b l e a t t o r n e y ' s fees. (24a, R24)
S e c . 25. Deposition upon written interrogatories;

service of notice and of interrogatories. — A p a r t y
desiring to take the deposition of any person upon
written interrogatories shall serve them upon
every other party with a notice stating the name
and address of the person who is to answer t h e m
and the name or descriptive title and address of the
officer b e f o r e w h o m t h e d e p o s i t i o n i s t o b e t a k e n .
W i t h i n t e n (10) d a y s t h e r e a f t e r , a p a r t y so s e r v e d
may serve cross-interrogatories upon the party
p r o p o s i n g t o t a k e t h e d e p o s i t i o n . W i t h i n five (5)
days thereafter, the latter may serve re-direct
interrogatories upon a party who has served
cross-interrogatories. W i t h i n t h r e e (3) d a y s after
being served with re-direct interrogatories, a
party may serve recross-interrogatories upon the
party p r o p o s i n g t o t a k e t h e d e p o s i t i o n . (26, R24)
S e c . 26. Officers to take responses and prepare

record. — A c o p y of t h e n o t i c e a n d c o p i e s of a l l
357
interrogatories served shall be delivered by

the party taking the deposition to the officer
designated in the notice, who shall proceed
p r o m p t l y , i n t h e m a n n e r p r o v i d e d b y s e c t i o n s 17,
19 and 20 of this Rule, to take the testimony of the
witness in response to the interrogatories and to
p r e p a r e , c e r t i f y , a n d file o r m a i l t h e d e p o s i t i o n ,
attaching thereto the copy of the notice and the
i n t e r r o g a t o r i e s r e c e i v e d b y h i m . (26, R24)
S e c . 27. Notice of filing and furnishing copies. —

W h e n a d e p o s i t i o n u p o n i n t e r r o g a t o r i e s i s filed, t h e
officer t a k i n g i t s h a l l p r o m p t l y g i v e n o t i c e t h e r e o f
t o all t h e p a r t i e s , a n d m a y f u r n i s h c o p i e s t o t h e m
or to the deponent upon payment of reasonable
c h a r g e s t h e r e f o r . (27, R24)
S e c . 28. Orders for the protection of parties and

deponents. — After t h e s e r v i c e of t h e i n t e r r o g a t o r i e s
and prior to the taking of the testimony of the
deponent, the court in which the action is
p e n d i n g , on m o t i o n p r o m p t l y m a d e by a p a r t y or a
d e p o n e n t , a n d for g o o d c a u s e s h o w n , m a y m a k e a n y
o r d e r s p e c i f i e d i n s e c t i o n s 15, 1 6 a n d 1 8 o f t h i s
Rule w h i c h is appropriate and just or an order that
t h e d e p o s i t i o n s h a l l n o t b e t a k e n b e f o r e t h e officer
designated in the notice or that it shall not be taken
e x c e p t u p o n o r a l e x a m i n a t i o n . (28a, R24)
S e c . 29. Effect of errors and irregularities in

depositions. —
(a) As to notice. — All e r r o r s a n d i r r e g u l a r i t i e s
i n t h e n o t i c e for t a k i n g a d e p o s i t i o n a r e w a i v e d
unless written objection is promptly served upon
the party giving the notice.
358
(b) As to disqualification of officer. — O b j e c t i o n

to taking a deposition because of disqualification
o f t h e officer before w h o m i t i s t o b e t a k e n i s w a i v e d
unless made before the taking of the deposition
begins or as soon thereafter as the disqualification
becomes known or could be discovered with
reasonable diligence.
(c) As to competency or relevancy of evidence. —
Objections to the competency of a w i t n e s s or the
competency, relevancy, or materiality of testimony
are n o t w a i v e d b y f a i l u r e t o m a k e t h e m before o r
during the taking of the deposition, unless the
ground of the objection is one which might have
been obviated or removed if presented at that time.
(d) As to oral examination and other particulars. —
Errors and irregularities occurring at the
oral e x a m i n a t i o n in the manner of taking the
d e p o s i t i o n , i n t h e form o f t h e q u e s t i o n s o r a n s w e r s ,
in the oath or affirmation, or in the conduct of
the parties and errors of any kind which might be
obviated, removed, or cured if promptly prosecuted,
are w a i v e d u n l e s s r e a s o n a b l e o b j e c t i o n t h e r e t o i s
made at the taking of the deposition.
(e) As to form of written interrogatories.— Objec-
tions to the form of written interrogatories
submitted under sections 26 and 26 of this Rule
are w a i v e d u n l e s s s e r v e d i n w r i t i n g u p o n t h e p a r t y
p r o p o u n d i n g t h e m w i t h i n t h e t i m e a l l o w e d for
serving succeeding cross or other interrogatories
a n d w i t h i n t h r e e (3) d a y s after s e r v i c e o f t h e l a s t
interrogatories authorized.
(f) As to manner of preparation. — E r r o r s a n d
irregularities in the manner in which the testimony
is transcribed or the deposition is prepared, signed,
certified, sealed, indorsed, transmitted, filed, or
o t h e r w i s e d e a l t w i t h b y t h e officer u n d e r s e c t i o n s
359
17, 19, 20 to 26 of t h i s R u l e a r e w a i v e d u n l e s s a m o -
tion to suppress the deposition or some part thereof
is made with reasonable p r o m p t n e s s after such
defect is, or w i t h due diligence might have been, as-
c e r t a i n e d . (29a, R24)
360
RULE 24
DEPOSITIONS BEFORE ACTION

OR PENDING APPEAL
S e c t i o n 1. Depositions before action; petition. — A

person who desires to perpetuate his own testimony
or that of another person regarding any matter that
may be cognizable in any court of the Philippines,
m a y file a v e r i f i e d p e t i t i o n i n t h e c o u r t o f t h e p l a c e
of the residence of any expected adverse party,
( l a , R134)
S e c . 2. Contents of petition. — T h e p e t i t i o n s h a l l
be entitled in the name of the petitioner and
s h a l l s h o w : (a) t h a t t h e p e t i t i o n e r e x p e c t s t o b e a
party to an action in a court of the Philippines but
is presently unable to bring it or cause it to be
b r o u g h t ; (b) t h e s u b j e c t m a t t e r o f t h e e x p e c t e d
a c t i o n a n d h i s i n t e r e s t t h e r e i n ; (c) t h e f a c t s w h i c h
he desires to establish by the proposed testimony
a n d h i s r e a s o n s for d e s i r i n g t o p e r p e t u a t e it;
(d) t h e n a m e s o r a d e s c r i p t i o n o f t h e p e r s o n s h e
e x p e c t s will b e a d v e r s e p a r t i e s a n d t h e i r a d d r e s s e s
s o f a r a s k n o w n ; a n d (e) t h e n a m e s a n d a d d r e s s e s o f
the persons to be examined and the substance of
the testimony which he expects to elicit from
e a c h , a n d s h a l l a s k for a n o r d e r a u t h o r i z i n g t h e p e -
titioner to take the depositions of the persons to be
e x a m i n e d n a m e d i n t h e p e t i t i o n for t h e p u r p o s e o f
p e r p e t u a t i n g t h e i r t e s t i m o n y . (2, R134)
S e c . 3. Notice and service. — T h e p e t i t i o n e r s h a l l

serve a notice upon each person named in the
petition as an expected adverse party, together with
a copy of t h e petition, stating t h a t the petitioner
will a p p l y t o t h e c o u r t , a t a t i m e a n d p l a c e n a m e d
361
t h e r e i n , for t h e o r d e r d e s c r i b e d i n t h e p e t i t i o n .
A t l e a s t t w e n t y (20) d a y s b e f o r e t h e d a t e o f t h e
hearing, the court shall cause notice thereof to
be served on the parties and prospective deponents
i n t h e m a n n e r p r o v i d e d for s e r v i c e o f s u m m o n s .
(3a, R134)
S e c . 4. Order and examination. — If t h e c o u r t is

satisfied that the perpetuation of the testimony may
prevent a failure or delay of justice, it shall m a k e
an order designating or describing the persons
whose deposition may be taken and specifying the
subject matter of the examination, and whether the
d e p o s i t i o n s shall be t a k e n u p o n oral e x a m i n a t i o n
or written interrogatories. The depositions may
then be taken in accordance with Rule 23 before
t h e h e a r i n g . (4a, R134)
S e c . 5. Reference to court. — F o r t h e p u r p o s e of
a p p l y i n g R u l e 2 3 t o d e p o s i t i o n s for p e r p e t u a t i n g
testimony, each reference therein to the court in
which the action is pending shall be deemed to
r e f e r t o t h e c o u r t i n w h i c h t h e p e t i t i o n for s u c h
d e p o s i t i o n w a s filed. (5a, R134)
S e c . 6. Use of deposition.— If a d e p o s i t i o n to per-

p e t u a t e t e s t i m o n y i s t a k e n u n d e r t h i s R u l e , o r if,
although not so taken, it would be admissible in
evidence, it may be used in any action involving
the same subject matter subsequently brought in
a c c o r d a n c e w i t h the p r o v i s i o n s of s e c t i o n s 4 and 5
of R u l e 23. (6a, R134)
S e c . 7. Depositions pending appeal. — If an

a p p e a l h a s b e e n t a k e n f r o m a j u d g m e n t of a c o u r t ,
including the Court of Appeals in proper cases, or
before the taking of depositions of w i t n e s s e s to
362
RULE 24 DEPOSITIONS BEFORE ACTION SECS. 1-7
OR PENDING APPEAL
p e r p e t u a t e t h e i r t e s t i m o n y for u s e i n t h e e v e n t o f
further p r o c e e d i n g s i n t h e said c o u r t . I n s u c h c a s e
the party who desires to perpetuate the testimony
m a y m a k e a m o t i o n in t h e s a i d c o u r t for l e a v e to
take the depositions, upon the same notice and
service thereof as if the action was pending therein.
The m o t i o n s h a l l s t a t e (a) t h e n a m e s a n d a d d r e s s e s
of the persons to be examined and the substance
of the t e s t i m o n y w h i c h he expects to elicit from
e a c h ; a n d (b) t h e r e a s o n for p e r p e t u a t i n g t h e i r
testimony. If the court finds that the perpetuation
of the t e s t i m o n y is proper to avoid a failure or
delay of justice, it may make an order allowing
the depositions to be taken, and thereupon the
depositions may be taken and used in the same
manner and under the same conditions as are
p r e s c r i b e d i n t h e s e R u l e s for d e p o s i t i o n s t a k e n i n
p e n d i n g a c t i o n s . (7a, R134)
NOTES
1. This was formerly Rule 134 and has been t r a n s -

posed here. As distinguished from depositions de bene esse
which are governed by Rule 23, this Rule regulates the
taking of depositions in perpetuam rei memoriam, the pur-
pose of which is to p e r p e t u a t e the testimony of witnesses
for probable use in a future case or in the event of further
proceedings in t h e same case. For other ways of perpetu-
ating testimony in criminal cases, see Secs. 12, 13 and 15
of Rule 119 and the notes t h e r e u n d e r .
2. Sec. 1 is t h e procedure for perpetuating testimony
of witnesses prior to the filing of the case and in anticipa-
tion thereof. Sec. 7 is t h e procedure in p e r p e t u a t i n g
testimony after j u d g m e n t in the Regional Trial Court and
before it has become executory or during t h e pendency
of an appeal therefrom.
363
3. It is submitted t h a t Sec. 1 may not be availed of

in criminal cases, but the procedure in Sec. 7 is available
in all actions, including criminal cases.
4. Although t h e r e is no local j u r i s p r u d e n c e on the
m a t t e r , it is also submitted t h a t depositions in perpetuam
rei memoriam u n d e r this Rule, j u s t like any other deposi-
tions, are t a k e n conditionally and to be used at the trial
or proceeding only in case t h e deponent is not available.
This view a p p e a r s to be s u s t a i n e d by t h e fact t h a t u n d e r
S e c . 6 of t h i s R u l e , d e p o s i t i o n s in perpetuam rei
memoriam may be used in t h e action in accordance with
t h e provisions of Secs. 4 and 5 of Rule 23 which provide,
inter alia, for s i t u a t i o n s w h e r e i n t h e d e p o n e n t c a n n o t
testify as a w i t n e s s d u r i n g t h e trial.
5. Depositions t a k e n u n d e r this Rule do not prove

the existence of any right and the testimony therein
p e r p e t u a t e d is not in itself conclusive proof, e i t h e r of t h e
existence of any r i g h t nor even of t h e facts to which they
relate, as it can be controverted at t h e t r i a l in t h e same
m a n n e r as t h o u g h no p e r p e t u a t i o n of testimony w a s ever
had (Alonso, et al. vs. Lagdqmeo, 7 Phil. 75). However,
in t h e absence of any objection to t h e t a k i n g thereof and
even if t h e d e p o n e n t did not testify at t h e h e a r i n g of t h e
case, t h e p e r p e t u a t e d testimony c o n s t i t u t e s prima facie
proof of t h e facts referred to in his deposition (Rey vs.
Morales, 35 Phil. 230).
364
RULE 25
INTERROGATORIES TO PARTIES
S e c t i o n 1. Interrogatories to parties; service thereof.

— U n d e r t h e s a m e c o n d i t i o n s s p e c i f i e d in s e c t i o n 1
o f R u l e 23, a n y p a r t y d e s i r i n g t o e l i c i t m a t e r i a l a n d
r e l e v a n t f a c t s f r o m a n y a d v e r s e p a r t i e s s h a l l file
and serve upon the latter written interrogatories
t o b e a n s w e r e d b y t h e p a r t y s e r v e d or, i f t h e p a r t y
s e r v e d is a p u b l i c or p r i v a t e c o r p o r a t i o n or a
p a r t n e r s h i p o r a s s o c i a t i o n , b y a n y officer t h e r e o f
c o m p e t e n t t o t e s t i f y i n i t s behalf, ( l a )
S e c . 2. Answer to interrogatories. — T h e i n t e r -
r o g a t o r i e s s h a l l b e a n s w e r e d fully i n w r i t i n g a n d
shall be signed and sworn to by the person making
them. The party upon w h o m the interrogatories
h a v e b e e n s e r v e d s h a l l file a n d s e r v e a c o p y o f t h e
answers on the party submitting the interrogato-
r i e s w i t h i n f i f t e e n (15) d a y s after s e r v i c e thereof,
u n l e s s t h e c o u r t , o n m o t i o n a n d for g o o d c a u s e
s h o w n , e x t e n d s o r s h o r t e n s t h e t i m e . (2a)
S e c . 3. Objections to interrogatories. — O b j e c t i o n s
to any interrogatories may be presented to the
c o u r t w i t h i n t e n (10) d a y s after s e r v i c e thereof, w i t h
n o t i c e as in c a s e of a m o t i o n ; a n d a n s w e r s s h a l l be
d e f e r r e d u n t i l t h e o b j e c t i o n s are r e s o l v e d , w h i c h
s h a l l be at as e a r l y a t i m e as is p r a c t i c a b l e . (3a)
S e c . 4. Number of interrogatories. — No p a r t y
may, w i t h o u t l e a v e o f c o u r t , s e r v e m o r e t h a n o n e
set of interrogatories to be answered by the same
party. (4)
365
S e c . 6. Scope and use of interrogatories. — I n t e r -

rogatories may relate to any matters that can be
i n q u i r e d i n t o u n d e r s e c t i o n 2 o f R u l e 23, a n d t h e
a n s w e r s m a y b e u s e d for t h e s a m e p u r p o s e s p r o -
v i d e d i n s e c t i o n 4 o f t h e s a m e R u l e . (5a)
NOTES
1. J u s t like depositions, a p a r t y may serve w r i t t e n

i n t e r r o g a t o r i e s to t h e o t h e r p a r t y w i t h o u t leave of court
only after a n s w e r h a s been served. Before t h a t , leave of
court m u s t be obtained. U n d e r t h e s a m e considerations,
i n t e r r o g a t o r i e s may embrace any r e l e v a n t m a t t e r unless
t h e s a m e is (a) privileged or (b) prohibited by court order.
2. A j u d g m e n t by default may be r e n d e r e d a g a i n s t
a p a r t y who fails to serve his a n s w e r to w r i t t e n
i n t e r r o g a t o r i e s (Cason vs. San Pedro, L-18928, Dec. 28,
1962; see Sec. 3fcJ, Rule 29).
3. After s e r v i c e of t h e a n s w e r , l e a v e of c o u r t is
not required for t h e service of w r i t t e n interrogatories upon
a party {Arellano vs. CFI of Sorsogon, et al., L-34897,
July 15, 1975).
4. The liberty of a p a r t y to m a k e discovery is well-

nigh unrestricted if the m a t t e r s inquired into are
otherwise r e l e v a n t a n d not privileged, a n d t h e inquiry is
m a d e in good faith a n d within t h e bounds of law. In light
of t h e general philosophy of full discovery of relevant facts,
it is fairly r a r e t h a t it will be ordered t h a t a deposition
should not be t a k e n at all. It is only upon notice a n d good
cause shown t h a t t h e court may order t h a t a deposition
s h a l l n o t be t a k e n . Good c a u s e m e a n s a s u b s t a n t i a l
r e a s o n — one t h a t affords a legal excuse. The m a t t e r of
good cause is to be d e t e r m i n e d by t h e court.
The fact t h a t a p a r t y had previously availed of a mode
of discovery, which is by w r i t t e n interrogatories, cannot
be considered as good cause to p r e v e n t his r e s o r t to a
366
RULE 25 INTERROGATORIES TO PARTIES SEC. 6
deposition on oral examination because: (a) the fact t h a t

information similar to t h a t sought had been obtained by
a n s w e r s to interrogatories does not b a r an examination
before trial, and is not a valid objection to the t a k i n g of a
deposition in good faith, t h e r e being no duplication; and
(b) knowledge by t h e petitioner of the facts concerning
which t h e proposed deponent is to be examined does not
justify refusal of such examination. The various modes
of discovery u n d e r t h e Rules are clearly intended to be
c u m u l a t i v e , a n d not a l t e r n a t i v e or m u t u a l l y exclusive
(Fortune Corporation vs. CA, et al., G.R. No. 108119,
Jan. 19, 1994).
S e c . 6. Effect of failure to serve written interrogato-

ries. — U n l e s s t h e r e a f t e r a l l o w e d b y t h e c o u r t
for g o o d c a u s e s h o w n a n d t o p r e v e n t a f a i l u r e o f
justice, a party not served with written interroga-
tories may not be compelled by the adverse party
to give t e s t i m o n y in o p e n court, or to give a
d e p o s i t i o n p e n d i n g a p p e a l , (n)
NOTE
1. To u n d e r s c o r e t h e i m p o r t a n c e a n d significant
benefits of discovery procedures in t h e adjudication of
cases, this new provision encourages the use of w r i t t e n
interrogatories by imposing prejudicial consequences on
the p a r t y who fails or refuses to avail himself of w r i t t e n
interrogatories without good cause. A similar provision
h a s b e e n i n c o r p o r a t e d in t h e succeeding Rule 26 for
non-availment of requests for admission by the opposing
p a r t y . These two provisions are directed to t h e p a r t y
who fails or refuses to resort to the discovery procedures
therein, and should not be confused with the provisions
o f R u l e 2 9 w h i c h p r o v i d e s for s a n c t i o n s o r o t h e r
consequences upon a party who refuses or fails to comply
with d i s c o v e r y p r o c e d u r e s d u l y a v a i l e d of by h i s
opponent.
367
W h e r e a p a r t y unjustifiedly refuses to elicit facts

m a t e r i a l and r e l e v a n t to his case by addressing w r i t t e n
interrogatories to t h e adverse p a r t y to elicit those facts,
the latter may not thereafter be compelled to testify thereon
in court or give a deposition pending appeal. The justifi-
cation for t h i s is t h a t t h e p a r t y in need of said facts hav-
ing foregone t h e opportunity to inquire into t h e same from
t h e o t h e r p a r t y t h r o u g h m e a n s available to him, he should
not t h e r e a f t e r be p e r m i t t e d to unduly b u r d e n t h e l a t t e r
w i t h courtroom a p p e a r a n c e s or o t h e r c u m b e r s o m e pro-
cesses. The sanction adopted by t h e Rules is not one of
compulsion in t h e sense t h a t t h e p a r t y is being directly
compelled to avail of t h e discovery mechanics, b u t one of
negation by depriving him of evidentiary sources which
would otherwise have been accessible to him.
368
RULE 26
ADMISSION BY ADVERSE PARTY
S e c t i o n 1. Request for admission. — At a n y t i m e

a f t e r i s s u e s h a v e b e e n j o i n e d , a p a r t y m a y file a n d
s e r v e u p o n a n y o t h e r p a r t y a w r i t t e n r e q u e s t for
the admission by the latter of the genuineness of
any material and relevant document described in
and exhibited with the request or of the truth of
a n y m a t e r i a l a n d r e l e v a n t m a t t e r of fact set
forth in the request. Copies of the documents
shall be delivered with the request unless copies
have already been furnished, (la)
S e c . 2. Implied admission. — E a c h of t h e m a t t e r s
of which an admission is requested shall be deemed
admitted unless, within a period designated in the
r e q u e s t , w h i c h s h a l l n o t b e l e s s t h a n f i f t e e n (15)
days after service thereof, or within such further
time as t h e c o u r t m a y allow on motion, the p a r t y to
w h o m t h e r e q u e s t i s d i r e c t e d files a n d s e r v e s u p o n
the party requesting the admission a sworn state-
m e n t either d e n y i n g specifically the m a t t e r s of
which an admission is requested or setting forth in
detail the reasons why he cannot truthfully either
admit or deny those matters.
O b j e c t i o n t o a n y r e q u e s t for a d m i s s i o n s h a l l b e
submitted to the court by the party requested
w i t h i n t h e p e r i o d for a n d p r i o r t o t h e f i l i n g o f h i s
sworn statement as contemplated in the preceding
p a r a g r a p h and his compliance therewith shall be
deferred until such objections are resolved, which
resolution shall be made as early as practicable.
(2a)
369
RULE 26 R E M E D I A L LAW COMPENDIUM SECS. 1-3
S e c . 3. Effect of admission. — A n y a d m i s s i o n
m a d e b y a p a r t y p u r s u a n t t o s u c h r e q u e s t i s for t h e
purpose of the p e n d i n g action only and shall not
c o n s t i t u t e a n a d m i s s i o n b y h i m for a n y o t h e r
purpose nor may the same be used against him in
a n y o t h e r p r o c e e d i n g . (3)
NOTES
1. Rule 26, as a mode of discovery, c o n t e m p l a t e s

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

detailed provisions on objections to requests for admission,
as well as t h e effects a n d disposition thereof.
370
RULE 26 ADMISSION BY ADVERSE PARTY SEC. 4
4. Where t h e plaintiff failed to answer a request for

admission filed u n d e r this Rule, based on its allegations
in its original complaint, the legal effects of its implied
admission of t h e facts stated in the request cannot be set
aside by its subsequent filing of an amended complaint.
It s h o u l d h a v e filed a m o t i o n to be r e l i e v e d of t h e
consequences of said implied admission (Bay View Hotel,
Inc. vs. Ker & Co., Ltd., et al., L-28237, Aug. 31, 1982).
5. Where a copy of t h e request for admission was

served only upon the counsel of the p a r t y so requested,
it was held t h a t t h e r e was insufficient compliance with
Rule 26. The general rule t h a t notices shall be served on
t h e counsel of a p a r t y c a n n o t apply w h e r e t h e Rules
expressly provide t h a t it should be served upon a definite
person. Sec. 1 of this Rule provides t h a t t h e request for
admission should be served on t h e p a r t y to whom t h e
r e q u e s t is directed. Hence, t h e r e q u e s t for admission
was not validly served and t h a t p a r t y cannot be deemed
to have admitted t h e t r u t h of the m a t t e r s of which
a d m i s s i o n s w e r e r e q u e s t e d (Duque vs. CA, et al. a n d
Valenzuela, etc., et al. vs. CA, et al, G.R. No. 125383,
July 2, 2002).
6. However, an a n s w e r to a request for admission

properly served, which was signed and sworn to by the
counsel of the p a r t y so requested, is sufficient compliance
with this Rule, especially in light of counsel's authority
u n d e r Secs. 21 and 23, Rule 138 (Lahada vs. CA, et al,
G.R. No. 102390 and Nestle Philippines, Inc., et al. vs.
CA, et al, G.R. No. 102404, Feb. 1, 2002).
S e c . 4. Withdrawal. — T h e c o u r t m a y a l l o w t h e
party making an admission under this Rule,
whether express or implied, to withdraw or amend
i t u p o n s u c h t e r m s a s m a y b e j u s t . (4)
371
S e c . 6. Effect of failure to file and serve request for

admission. — U n l e s s o t h e r w i s e a l l o w e d by t h e c o u r t
for g o o d c a u s e s h o w n a n d t o p r e v e n t a f a i l u r e o f
j u s t i c e , a p a r t y w h o f a i l s to file a n d s e r v e a r e q u e s t
for a d m i s s i o n o n t h e a d v e r s e p a r t y o f m a t e r i a l
and relevant facts at issue w h i c h are, or o u g h t to
be, w i t h i n t h e p e r s o n a l k n o w l e d g e of t h e latter,
shall not be permitted to present evidence on
s u c h f a c t s , (n)
NOTE
1. See t h e similar provision on unjustified failure of

a p a r t y to avail of w r i t t e n i n t e r r o g a t o r i e s as a mode of
discovery a n d t h e sanction therefor u n d e r Sec. 6 of Rule
25. The r e a s o n for t h e s e new provisions is explained in
t h e note t h e r e u n d e r . In Sec. 6 of Rule 25, t h e sanction
consists in allowing t h e a d v e r s e p a r t y to refuse to give
testimony or m a k e a deposition on a p p e a l respecting t h e
facts involved. U n d e r t h i s section of t h e Rule on r e q u e s t
for admission, t h e p a r t y who fails or refuses to r e q u e s t
t h e admission of t h e facts in question is himself p r e v e n t e d
from t h e r e a f t e r p r e s e n t i n g e v i d e n c e t h e r e o n . I n b o t h
cases, t h e court shall d e t e r m i n e on a case to case basis
w h e t h e r or not t h e n o n - a v a i l m e n t of t h e two modes of
discovery w a s justified or t h e n e g a t i v e s a n c t i o n s will
unjustly prejudice t h e e r r i n g p a r t y .
372
R U L E 27
P R O D U C T I O N OR I N S P E C T I O N
OF D O C U M E N T S OR T H I N G S
S e c t i o n 1. Motion for production or inspection;

order. — U p o n m o t i o n of a n y p a r t y s h o w i n g g o o d
cause therefor, the court in which an action is
p e n d i n g m a y (a) o r d e r a n y p a r t y t o p r o d u c e a n d
permit the inspection and copying or photo-
graphing, by or on behalf of the moving party,
of any designated documents, papers, books,
accounts, letters, photographs, objects or tangible
things, not privileged, which constitute or contain
evidence material to any matter involved in the
action and which are in his possession, custody
o r c o n t r o l ; o r (b) o r d e r a n y p a r t y t o p e r m i t e n t r y
upon designated land or other property in his
p o s s e s s i o n o r c o n t r o l for t h e p u r p o s e o f i n s p e c t i n g ,
measuring, surveying, or photographing the
property or any designated relevant object or
operation thereon. The order shall specify the
time, place and manner of making the inspection
and taking copies and photographs, and may
prescribe s u c h t e r m s and c o n d i t i o n s as are just,
(la)
NOTES
1. T h e p r o d u c t i o n of d o c u m e n t s a f f o r d s m o r e
opportunity for discovery t h a n a subpoena duces tecum
as, in the latter, the documents are brought to t h e court
for t h e first t i m e on t h e d a t e of t h e s c h e d u l e d t r i a l
w h e r e i n such d o c u m e n t s are required to be produced.
The inspection of land and other real property for t h e
purposes authorized by this Rule also avoids the need for
ocular inspection thereof by the court.
373
2 . I n c r i m i n a l c a s e s , m o t i o n s for p r o d u c t i o n o r
inspection of d o c u m e n t s a r e governed by Sec. 10, Rule
116, a n d may be availed of only by t h e accused generally
d u r i n g t h e pendency of t h e case for trial.
3. T h i s mode of discovery does not a u t h o r i z e t h e

opposing p a r t y or t h e clerk or o t h e r functionaries of t h e
court to d i s t r a i n t h e articles or deprive t h e p e r s o n who
produced t h e s a m e of t h e i r possession, even temporarily
(Tanda vs. Aldaya, 89 Phil. 497).
4. In motions for production of documents u n d e r this

Rule, it h a s been held t h a t "a p a r t y is ordinarily entitled
to t h e production of books, documents a n d p a p e r s which
a r e m a t e r i a l and relevant to t h e e s t a b l i s h m e n t of his cause
of action or defense" [General Electric Co. vs. Superior
Court in and for Almeda County, 45 C 2d 879, cited in
Martin, Rules of Court, 3rd edition, Vol. 2, p. 104]. "The
t e s t to be applied by t h e t r i a l judge in d e t e r m i n i n g t h e
r e l e v a n c y o f d o c u m e n t s a n d t h e sufficiency o f t h e i r
description is one of r e a s o n a b l e n e s s a n d practicability"
[Line Corp. of the Philippines vs. Moran, 59 Phil. 176,
180). "On t h e ground of public policy, t h e r u l e s providing
for production a n d inspection of books a n d p a p e r s do not
authorize the production or inspection of privileged
m a t t e r , t h a t is, books a n d p a p e r s which because of t h e i r
confidential a n d privileged c h a r a c t e r could not be received
in evidence" [27 CJS 224]. "In p a s s i n g on a motion for
discovery of d o c u m e n t s , t h e c o u r t s h o u l d be liberal in
d e t e r m i n i n g w h e t h e r or not d o c u m e n t s a r e r e l e v a n t to t h e
subject m a t t e r of the action" [Hercules Powder Co. vs. Haas
Co., U.S. Dist. Crt., Oct. 26, 1944; 9 Fed. Rules Service,
659, cited in Moran, Comments on the Rules of Court, 1979
Ed., Vol. 2, p. 102). Likewise, "any s t a t u t e declaring in
g e n e r a l t e r m s t h a t official records a r e confidential should
be liberally construed, to have an implied exception for
disclosure w h e n needed in a court of justice" [Wigmore on
Evidence, Vol. VIII, p. 801, citing t h e case oiMarbury vs.
374
RULE 27 P R O D U C T I O N OR INSPECTION SEC. 1
OF DOCUMENTS OR THINGS
Madison, 1 Cr. 137, 143] (Banco Filipino vs. Monetary

Board, et al., G.R. No. 70054, July 8, 1986).
5. In an American case, it was held t h a t the court
can compel the plaintiff, u n d e r this Rule, to consent to
t h e e x h u m a t i o n of t h e body of t h e deceased in a case
involving t h e "accidental death" clause of an insurance
policy (Zalatuka vs. Metropolitan Life Ins. Co.,
U.S.C.C.A., Dec. 22, 1939, 108 F. [2d] 405, 2 Fed. Rules
Service, p. 37).
It is believed t h a t t h e aforestated ruling could be
applicable here in a civil case involving the same issue,
considering t h a t Sec. 1 of t h i s Rule also speaks of "objects
or tangible things" which is broad enough to include a
cadaver. On t h e other hand, Rule 28 of the revised Rules
cannot be invoked for t h e same purpose as it contemplates
and is limited to physical and m e n t a l examination of a
living person. There would, however, be no problem if
the exhumation or postmortem examination is involved in
and necessary for purposes of a criminal action.
6. Although it is not among the modes of discovery,

but considering t h e similarity of objectives sought to be
subserved, note should be t a k e n of the writ of search and
seizure authorized for t h e protection of intellectual prop-
erty. In a resolution in A.M. No. 02-1-06-SC, dated J a n u -
ary 22, 2002, t h e S u p r e m e Court approved the rule on
Search and Seizure in Civil Actions for Infringement of
Intellectual Property Rights (Appendix Z) which governs
this judicial process, effective February 15, 2002.
375
RULE 28
PHYSICAL A N D MENTAL EXAMINATION

OF P E R S O N S
S e c t i o n 1. When examination may be ordered. — In

an action in which the mental or physical condition
of a party is in controversy, the court in w h i c h the
action is p e n d i n g m a y in its discretion order h i m to
s u b m i t to a p h y s i c a l or m e n t a l e x a m i n a t i o n by a
p h y s i c i a n . (1)
NOTES
1. The m e n t a l condition of a p a r t y is in controversy

in proceedings for g u a r d i a n s h i p over an imbecile or insane
person, while t h e physical condition of a p a r t y is generally
involved in physical injuries cases.
2. A blood g r o u p i n g t e s t may be o r d e r e d and

conducted u n d e r t h i s Rule on a child subject of a p a t e r n i t y
suit. While t h e Rule s p e a k s of an e x a m i n a t i o n of a p a r t y ,
such child is considered a p a r t y for p u r p o s e s thereof as
t h e action is b r o u g h t for i t s benefit (Beach vs. Beach,
U.S.C.A., D.C., June 28, 1940, 3 Fed. Rules Service,
p. 397).
3. Since t h e r e s u l t s of t h e e x a m i n a t i o n a r e i n t e n d e d
to be made public, the same are not covered by the
p h y s i c i a n - p a t i e n t privilege. F u r t h e r m o r e , such exami-
nation is not necessary to t r e a t or cure t h e p a t i e n t b u t to
assess t h e e x t e n t of injury or to e v a l u a t e his physical or
m e n t a l condition.
S e c . 2. Order for examination. — T h e o r d e r for

e x a m i n a t i o n m a y b e m a d e o n l y o n m o t i o n for g o o d
cause shown and upon notice to the party to be
e x a m i n e d and to all other parties, and shall specify
376
RULE 28 PHYSICAL AND MENTAL SECS. 3-4
EXAMINATION OF PERSONS
the time, place, manner, conditions and scope of the

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

a r e p o r t on the r e s u l t s of the e x a m i n a t i o n , the
consequences are t h a t (a) he has to furnish the other party
a copy of t h e r e p o r t of any p r e v i o u s or s u b s e q u e n t
377
examination of the same physical and mental condition,

and (b) he waives any privilege he may have in that action
or any other involving the same controversy regarding
the testimony of any other person who has so examined
him or may thereafter examine him. For the physician-
patient privilege, see Sec. 24(c), Rule 130 and Note 4
thereunder.
378
R U L E 29
REFUSAL TO COMPLY
WITH MODES OF DISCOVERY
S e c t i o n 1. Refusal to answer. — If a p a r t y or o t h e r
deponent refuses to answer any question upon oral
examination, the examination may be completed on
other matters or adjourned as the proponent of the
question may prefer. The proponent may there-
after apply to the p r o p e r court of the place w h e r e
t h e d e p o s i t i o n i s b e i n g t a k e n for a n o r d e r t o c o m p e l
an answer. The same procedure may be availed of
w h e n a p a r t y or a witness refuses to a n s w e r any
i n t e r r o g a t o r y s u b m i t t e d u n d e r R u l e s 2 3 o r 25.
If the application is granted, the court shall
require the refusing party or deponent to answer
the question or interrogatory and if it also finds
that the refusal to answer was without substantial
justification, it may require the refusing party or
deponent or the counsel advising the refusal, or
both of them, to pay the proponent the amount of
the reasonable expenses incurred in obtaining the
o r d e r , i n c l u d i n g a t t o r n e y ' s fees.
If t h e application is denied a n d the c o u r t finds
t h a t i t w a s filed w i t h o u t s u b s t a n t i a l j u s t i f i c a t i o n ,
the court may require the proponent or the counsel
a d v i s i n g t h e filing of t h e application, or both of
them, to pay to the refusing party or deponent the
amount of the reasonable expenses incurred in
opposing the application including attorney's
fees, ( l a )
S e c . 2. Contempt of court. — If a p a r t y or o t h e r
witness refuses to be sworn or refuses to answer
any question after being directed to do so by the
379
court of the place in which the deposition is being

taken, the refusal may be considered a c o n t e m p t of
t h a t c o u r t . (2a)
S e c . 3. Other consequences. — If a n y p a r t y or an
officer o r m a n a g i n g a g e n t o f a p a r t y r e f u s e s t o o b e y
an order made under section 1 of this Rule
requiring him to answer designated questions, or
an order under Rule 27 to produce any document
o r o t h e r t h i n g for i n s p e c t i o n , c o p y i n g , o r
p h o t o g r a p h i n g or to permit it to be done, or to
permit entry upon land or other property, or an
order made under Rule 26 requiring h i m to submit
to a physical or mental examination, the court may
m a k e s u c h orders in regard to t h e refusal as are
just, and a m o n g others the following:
(a) A n o r d e r t h a t t h e m a t t e r s r e g a r d i n g w h i c h
the questions were asked, or the character or
description of the thing or land, or the contents of
the paper, or the physical or mental condition of
the party, or any other designated facts shall be
t a k e n t o b e e s t a b l i s h e d for t h e p u r p o s e o f t h e a c t i o n
in accordance with the claim of the party obtaining
the order;
(b) A n o r d e r r e f u s i n g t o a l l o w t h e d i s o b e d i e n t
party to support or oppose designated claims or
defenses or prohibiting him from introducing in
evidence designated documents or things or items
of testimony, or from introducing evidence of
physical or mental condition;
(c) A n o r d e r s t r i k i n g o u t p l e a d i n g s o r p a r t s
thereof, or staying further proceedings until the
order is obeyed, or dismissing the action or
p r o c e e d i n g or any part thereof, or r e n d e r i n g a
j u d g m e n t b y d e f a u l t a g a i n s t t h e d i s o b e d i e n t party;
and
380
RULE 29 REFUSAL TO COMPLY SECS. 4-6
WITH MODES OF DISCOVERY
(d) In l i e u of a n y of t h e f o r e g o i n g o r d e r s or in
addition thereto, an order directing the arrest of
a n y p a r t y or a g e n t of a p a r t y for d i s o b e y i n g a n y of
such orders except an order to submit to a physical
or m e n t a l e x a m i n a t i o n . (3a)
S e c . 4. Expenses on refusal to admit. — If a p a r t y

after b e i n g s e r v e d w i t h a r e q u e s t u n d e r R u l e 26 to
admit the genuineness of any document or the truth
o f a n y m a t t e r o f fact, s e r v e s a s w o r n d e n i a l t h e r e o f
and if the party r e q u e s t i n g the admissions
thereafter proves the genuineness of such
d o c u m e n t o r t h e t r u t h o f a n y s u c h m a t t e r o f fact,
h e m a y a p p l y t o t h e c o u r t for a n o r d e r r e q u i r i n g
the other party to pay h i m the reasonable e x p e n s e s
i n c u r r e d i n m a k i n g s u c h proof, i n c l u d i n g a t t o r n e y ' s
fees. U n l e s s t h e c o u r t f i n d s t h a t t h e r e w e r e g o o d
r e a s o n s for t h e d e n i a l o r t h a t a d m i s s i o n s s o u g h t
were of no substantial importance, such order shall
be i s s u e d . (4a)
S e c . 5. Failure of party to attend or serve answers.

— If a p a r t y or an o f f i c e r or m a n a g i n g a g e n t of
a p a r t y w i l l f u l l y fails to a p p e a r before t h e officer
w h o i s t o t a k e h i s d e p o s i t i o n , after b e i n g s e r v e d
w i t h a p r o p e r n o t i c e , or fails to s e r v e a n s w e r s to
i n t e r r o g a t o r i e s s u b m i t t e d u n d e r R u l e 25, a f t e r
proper service of such interrogatories, the court on
m o t i o n a n d n o t i c e , m a y s t r i k e o u t all o r a n y part o f
any p l e a d i n g o f t h a t party, o r d i s m i s s t h e a c t i o n o r
p r o c e e d i n g or a n y part thereof, or e n t e r a j u d g m e n t
b y d e f a u l t a g a i n s t t h e party, a n d i n its d i s c r e t i o n ,
order h i m to pay reasonable expenses incurred by
t h e o t h e r , i n c l u d i n g a t t o r n e y ' s fees. (5)
S e c . 6. Expenses against the Republic of the

Philippines. — E x p e n s e s a n d a t t o r n e y ' s fees are not
381
to be imposed upon the Republic of the Philippines

u n d e r t h i s R u l e . (6)
NOTES
1. Where t h e plaintiff failed to a n s w e r t h e w r i t t e n

i n t e r r o g a t o r i e s for unexplained reasons, dismissal of the
complaint is w a r r a n t e d u n d e r Sec. 5, Rule 29 a n d such
omission may also be considered as failure to prosecute
t h e action (Arellano vs. CFI of Sorsogon, et al., L-34897,
July 15, 1975).
2. The former title of t h i s Rule which read "Refusal

to M a k e Discovery" h a s been changed in t h i s revision in
t h e i n t e r e s t of accuracy.
382
RULE 30
TRIAL
S e c t i o n 1. Notice of trial. — U p o n e n t r y of a c a s e
in the trial calendar, the clerk shall notify the
parties of the date of its trial in such m a n n e r as
s h a l l e n s u r e h i s r e c e i p t o f t h a t n o t i c e a t l e a s t five
(5) d a y s before s u c h d a t e . (2a, R22)
NOTES
1. The words "trial" a n d "hearing" have different

m e a n i n g s a n d c o n n o t a t i o n s . T r i a l m a y refer t o t h e
reception of evidence and other processes. It embraces
the period for t h e introduction of evidence by both parties.
Hearing, as known in law, is not confined to t r i a l b u t
embraces t h e several stages of litigation, including t h e
p r e - t r i a l s t a g e . A h e a r i n g does not necessarily m e a n
presentation of evidence. It does not necessarily imply
t h e p r e s e n t a t i o n of o r a l or d o c u m e n t a r y evidence in
open court but t h a t the parties are afforded the opportunity
to be h e a r d (Republic vs. Sandiganbayan, et al.,
G.R. No. 152154, Nov. 18, 2003).
2. As a m a t t e r of procedural due process, it is now
required t h a t t h e p a r t i e s should receive notice of the trial
at least 5 days before the scheduled date. This is intended
to avoid the u s u a l misunderstandings and failure of the
parties to appear for trial as the previous rule did not spell
out these mechanics of service.
S e c . 2. Adjournments and postponements. — A

c o u r t m a y a d j o u r n a trial from d a y to day, a n d to
any stated time, as the expeditious and convenient
t r a n s a c t i o n o f b u s i n e s s m a y r e q u i r e , but s h a l l h a v e
no p o w e r to a d j o u r n a trial for a l o n g e r p e r i o d t h a n
383
o n e m o n t h for e a c h a d j o u r n m e n t , nor m o r e
t h a n t h r e e m o n t h s i n all, e x c e p t w h e n a u t h o r i z e d
in writing by the Court Administrator, Supreme
Court. (3a, R22)
S e c . 3. Requisites of motion to postpone trial

for absence of evidence. — A m o t i o n to p o s t p o n e a
trial on the ground of absence of evidence can
be granted only upon affidavit showing the
materiality and relevancy of such evidence, and
t h a t d u e d i l i g e n c e h a s b e e n u s e d t o p r o c u r e it. B u t
if the adverse party admits the facts to be given in
evidence, even if he objects or reserves the right to
object to their admissibility, the trial shall not be
p o s t p o n e d . (4a, R22) (As corrected by Resolution of the
Supreme Court, dated July 21, 1998)
S e c . 4. Requisites of motion to postpone trial for

illness of party or counsel. — A m o t i o n to p o s t p o n e a
trial on the ground of illness of a party or counsel
may be granted if it appears u p o n affidavit or s w o r m
certification that the presence of such party or
counsel at the trial is indispensable and that the
character of his illness is such as to render his non-
a t t e n d a n c e e x c u s a b l e . (5a, R22)
NOTES
1. P o s t p o n e m e n t s are addressed to the sound

discretion of t h e court and, in t h e absence of grave abuse
of discretion, c a n n o t be controlled by m a n d a m u s (Olsen
vs. Fressel & Co., 37 Phil. 121).
2. T h e p r o v i s i o n s of Sec. 3 of t h i s R u l e a r e not
applicable to c r i m i n a l cases as t h e rule on p o s t p o n e m e n t s
in c r i m i n a l cases is governed by Sec. 2, Rule 119 (People
vs. Catolico, L-31261-65, April 20, 1971).
384
RULE 30 TRIAL SEC. 5
3. A mere medical certificate is generally insufficient.

It m u s t be u n d e r o a t h or in t h e form of an affidavit.
However, it h a s been held t h a t even if t h e motion to
postpone on account of illness was not accompanied by a
medical certificate, since not every ailment is a t t e n d e d to
by a physician and the required medical certificate u n d e r
oath could not be obtained within a limited time, such
r e q u i r e m e n t may be dispensed with in t h e i n t e r e s t of
justice (Sarmiento vs. Juan, G.R. No. 56605, Jan. 28,
1983).
S e c . 5. Order of trial. — S u b j e c t to t h e p r o -
v i s i o n s o f s e c t i o n 2 o f R u l e 31, a n d u n l e s s t h e c o u r t
for s p e c i a l r e a s o n s o t h e r w i s e d i r e c t s , t h e trial s h a l l
b e l i m i t e d t o t h e i s s u e s s t a t e d i n t h e pre-trial o r d e r
and shall proceed as follows:
(a) T h e p l a i n t i f f s h a l l a d d u c e e v i d e n c e i n
support of his complaint;
(b) T h e d e f e n d a n t s h a l l t h e n a d d u c e e v i d e n c e
in support of his defense, counterclaim, cross-claim
and third-party complaint;
(c) T h e t h i r d - p a r t y d e f e n d a n t , i f a n y , s h a l l
adduce evidence of his defense, counterclaim,
cross-claim and fourth-party complaint;
(d) T h e f o u r t h - p a r t y , a n d so forth, if a n y , s h a l l
a d d u c e e v i d e n c e o f t h e m a t e r i a l facts p l e a d e d b y
them;
(e) T h e p a r t i e s a g a i n s t w h o m a n y c o u n t e r -
claim or cross-claim has been pleaded, shall adduce
evidence in support of their defense, in the order to
be p r e s c r i b e d by t h e court;
(f) T h e p a r t i e s m a y t h e n r e s p e c t i v e l y a d d u c e
r e b u t t i n g e v i d e n c e o n l y , u n l e s s t h e c o u r t , for
good reasons and in the furtherance of justice,
permits them to adduce evidence upon their
original case; and
385
(g) U p o n a d m i s s i o n o f t h e e v i d e n c e , t h e c a s e
s h a l l b e d e e m e d s u b m i t t e d for d e c i s i o n , u n l e s s t h e
court directs the parties to argue or to submit their
respective memoranda or any further pleadings.
If several defendants or third-party defendants,
and so forth, h a v i n g separate d e f e n s e s a p p e a r by
different counsel, the court shall determine the
relative order of presentation of their evidence, (la,
R30)
NOTES
1. U n d e r s c o r i n g t h e i m p o r t a n c e of a p r e - t r i a l
conference a n d t h e proceeding conducted t h e r e i n , this
a m e n d e d section additionally provides t h a t , u n l e s s t h e
court specifically directs, t h e t r i a l shall be limited to t h e
issues s t a t e d in t h e p r e - t r i a l order.
2. P a r . (g) declares, for p u r p o s e s of fixing t h e date

of s u b m i s s i o n of t h e c a s e for d e c i s i o n v i s - a - v i s t h e
c o n s t i t u t i o n a l period for deciding t h e s a m e , t h a t it shall
be u p o n t h e a d m i s s i o n of t h e e v i d e n c e of t h e p a r t i e s .
However, if the trial court allows oral a r g u m e n t or
submission of m e m o r a n d a , the period shall be
c o r r e s p o n d i n g l y e x t e n d e d after s u c h p r o c e e d i n g s h a v e
b e e n c o n d u c t e d o r such m e m o r a n d a s u b m i t t e d . Since
t h e r e is a possibility t h a t t h e m e m o r a n d a m a y not be
received in t h e court s i m u l t a n e o u s l y , t h e c o u r t should
specify in a d v a n c e or declare after a c t u a l submission of
t h e m e m o r a n d a o r f u r t h e r pleadings t h e d a t e w h e n t h e
case is d e e m e d s u b m i t t e d for decision.
3. The order of t r i a l provided for in Sec. 5 applies

to a regularly controverted claim. Hence, if t h e a n s w e r
admits the defendant's obligation as alleged in the
complaint but special defenses are invoked, plaintiff
does not have to p r e s e n t evidence since judicial admissions
do not r e q u i r e proof (Sec. 2, Rule 129), a n d it should be
386
the defendant who should forthwith p r e s e n t his evidence

in support of his special defenses (Yu vs. Mapayo, L-29742,
Mar. 29, 1972).
4. Additional evidence may be offered at the rebuttal

s t a g e if it w a s newly discovered, or o m i t t e d t h r o u g h
mistake or inadvertence, or where the purpose is to correct
evidence previously offered (Lopez vs. Liboro, 81 Phil.
429), subject to the discretion of the court.
5. A r e l a t e d r u l e in A m e r i c a n j u r i s p r u d e n c e on
evidence at the rebuttal stage was adopted by the Supreme
C o u r t in a c r i m i n a l case (People vs. Mazo, G.R. No.
136869, Oct. 17, 2001) which could very well apply in all
o t h e r c a s e s . T h e holding is t h a t evidence offered in
rebuttal is not automatically excluded just because it would
have been more properly admitted in the case in chief.
W h e t h e r evidence could have been more properly
admitted in the case in chief is not a test of admissibility
of evidence in r e b u t t a l . T h u s , the fact t h a t testimony
might have been useful and usable in t h e case in chief
does not necessarily preclude its use in rebuttal.
S e c . 6. Agreed statement of facts. — T h e p a r t i e s

t o a n y a c t i o n m a y a g r e e , i n w r i t i n g , u p o n t h e facts
i n v o l v e d i n t h e l i t i g a t i o n , a n d s u b m i t t h e c a s e for
judgment on the facts agreed upon, without the
introduction of evidence.
I f t h e p a r t i e s a g r e e o n l y o n s o m e o f t h e facts
in issue, the trial shall be held as to the disputed
facts in such order as the court shall prescribe.
(2a, R30)
NOTES
1. This is known as a stipulation of facts and is

among t h e purposes of a pre-trial in civil cases (Sec. 2[d],
Rule 18). The parties may also stipulate verbally in open
387
RULE 30 REMEDIAL LAW COMPENDIUM S E C S . 7, 8
court. Such s t i p u l a t i o n s a r e b i n d i n g u n l e s s relief

therefrom is p e r m i t t e d by t h e court on good cause shown,
such as e r r o r or fraud (Ortua vs. Rodriguez, 63 Phil. 809).
B u t counsel c a n n o t s t i p u l a t e o n w h a t t h e i r respective
evidence consists of and ask t h a t j u d g m e n t be rendered
on t h e basis of such stipulation (Arzadon vs. Arzadon, 15
Phil. 77).
2. S t i p u l a t i o n s of facts are not p e r m i t t e d in
actions for a n n u l m e n t of m a r r i a g e (Art. 88, Civil Code;
now, Art. 48 Family Code) a n d for l e g a l s e p a r a t i o n
(Art. 101, Civil Code; n o w , Art. 60, Family Code).
Formerly, in criminal cases, stipulations of facts were not
p e r m i t t e d (U.S. vs. Donato, 9 Phil. 701; People vs. Ordonio,
[CA], 67 O.G. 4224). See, however, Rule 118 which now
p e r m i t s such s t i p u l a t i o n s a t t h e p r e - t r i a l conference.
S e c . 7. Statement of judge. — D u r i n g t h e h e a r i n g
or trial of a case any statement made by the judge
with reference to the case, or to any of the parties,
witnesses or counsel, shall be made of record in the
s t e n o g r a p h i c n o t e s . (3a, R30)
NOTE
1. T h i s p r o v i s i o n differs s o m e w h a t from t h a t of
Sec. 17, Rule 136, t h e last p a r a g r a p h whereof r e a d s as
follows:
"Whenever requested by a party, any statement made
by a judge of first instance, or by a commissioner, w i t h
reference to a case being tried by him, or to any of t h e
p a r t i e s t h e r e t o , or to any w i t n e s s or a t t o r n e y , d u r i n g t h e
h e a r i n g of s u c h c a s e , s h a l l be m a d e of r e c o r d in t h e
s t e n o g r a p h i c notes."
S e c . 8. Suspension of actions. — T h e s u s p e n s i o n
of actions shall be governed by the provisions of
t h e C i v i l C o d e , (n)
388
NOTES
1. Rule 21 of t h e former Rules, providing for t h e

suspension of action, has been eliminated in these revised
Rules and, instead, these provisions of the Civil Code have
been adopted for t h a t purpose:
"Art. 2030. Every civil action or proceeding shall
be suspended:
(1) If willingness to discuss a possible compromise
is expressed by one or both parties; or
(2) If it a p p e a r s t h a t one of the parties, before
the commencement of the action or proceeding, offered
to discuss a possible compromise but t h e other p a r t y
refused t h e offer.
The d u r a t i o n and t e r m s of the suspension of the
civil action or proceeding and similar m a t t e r s shall
be governed by such provisions of the rules of court
as t h e S u p r e m e Court shall promulgate. Said rules
of court shall likewise provide for the appointment
and duties of amicable compounders."
S e c . 9. Judge to receive evidence; delegation to clerk

of court. — T h e j u d g e of t h e c o u r t w h e r e t h e c a s e is
pending shall personally receive the evidence to be
adduced by the parties. However, in defaults or
ex parte h e a r i n g s , a n d in a n y c a s e w h e r e t h e p a r t i e s
agree in writing, the court may delegate the
r e c e p t i o n of e v i d e n c e to its c l e r k of c o u r t w h o is a
m e m b e r o f t h e bar. T h e c l e r k o f c o u r t s h a l l h a v e
no power to rule on objections to any question or
to the admission of exhibits, which objections shall
be resolved by the court upon submission of his
r e p o r t a n d t h e t r a n s c r i p t s w i t h i n t e n (10) d a y s from
t e r m i n a t i o n o f t h e h e a r i n g , (n)
389
NOTES
1. U n d e r t h e 1964 Rules, w h e r e t h e defendant is in

default, some courts referred t h e m a t t e r of t h e reception
of t h e evidence for t h e plaintiff to a commissioner, usually
t h e clerk of court or his d e p u t y . In Laluan, et al. vs.
Malpaya, et al. (L-21231, J u l y 30, 1975), it was held t h a t
t h e clerk of court may be authorized to receive evidence
subject to t h e condition t h a t if such proceedings a n d t h e
decision t h e r e o n prejudice t h e s u b s t a n t i a l r i g h t s of the
aggrieved p a r t y , t h e l a t t e r should be given an opportunity
to t h r e s h out his case in court. However, t h e S u p r e m e
Court subsequently ruled such practice as wrong and
w i t h o u t basis in any rule, a n d h a s r e q u i r e d t h a t , w h e r e
t h e defendant had been declared in default, t h e t r i a l judge
himself should t a k e down t h e evidence (Lim Tanhu vs.
Ramolete, et al., L-40098, Aug. 29, 1975). However, in
Continental Bank vs. Tiangco, et al. (G.R. No. 50480,
Dec. 14, 1979), it w a s held t h a t t h e j u d g m e n t based on
evidence received by the deputy clerk of court as
commissioner is valid where it was not impaired by
extrinsic fraud or lack of d u e process a n d t h e j u d g m e n t
d e b t o r s h a d m a d e p a r t i a l p a y m e n t t o satisfy it. T h e
Laluan case w a s a d v e r t e d to a n d t h e doctrine t h e r e i n was
r e i t e r a t e d in National Housing Authority vs. CA, et al.
(L-50877, April 28, 1983), w h e r e i n t h e p a r t i e s h a d agreed
to t h e a p p o i n t m e n t of a commissioner, a n d in Gochangco,
et al. vs. CFIofNegros Occ, et al. (L-49396, J a n . 15, 1988).
2. T h e p r e s e n t p r o v i s i o n is i n t e n d e d to effect a
r a p p r o c h e m e n t b e t w e e n t h e conflicting practices, having
in mind t h e need to relieve t h e judge of some of his judicial
functions w h e n e v e r t h e s a m e can be safely e n t r u s t e d to a
responsible officer a n d w i t h t h e necessary s a f e g u a r d s for
t h e i n t e r e s t s of t h e p a r t i e s . The basic r u l e , of course,
r e m a i n s t h a t t h e judge m u s t himself personally receive
a n d resolve t h e evidence of t h e p a r t i e s .
390
R U L E SO TRIAL SEC. 9
However, t h e reception of such evidence may be

delegated u n d e r t h e following conditions, viz.: (a) The
d e l e g a t i o n m a y be m a d e only in d e f a u l t or ex parte
h e a r i n g s , or on a g r e e m e n t in w r i t i n g by t h e p a r t i e s ;
(b) The reception of evidence shall be made only by t h e
clerk of t h a t court who is a member of the bar; (c) Said
clerk shall have no power to rule on objections to any
question or to t h e admission of evidence or exhibits; and
(d) He s h a l l s u b m i t his r e p o r t a n d t r a n s c r i p t s of t h e
proceedings, together with t h e objections to be resolved
by t h e court, within 10 days from the t e r m i n a t i o n of t h e
hearing.
391
RULE 31
C O N S O L I D A T I O N OR S E V E R A N C E
S e c t i o n 1 . Consolidation. — W h e n a c t i o n s
i n v o l v i n g a c o m m o n q u e s t i o n of law or fact are
p e n d i n g before the court, it may order a joint
h e a r i n g o r t r i a l o f a n y o r all t h e m a t t e r s i n i s s u e i n
the a c t i o n s ; it may order all the a c t i o n s con-
solidated; and it may make such orders concerning
proceedings therein as may tend to avoid
u n n e c e s s a r y c o s t s o r d e l a y . (1)
NOTES
1. The objects of consolidation, or t h e r a t i o n a l e of a

joint h e a r i n g a u t h o r i z e d by Rule 3 1 , are to avoid
multiplicity of s u i t s , g u a r d a g a i n s t oppression or abuse,
p r e v e n t delay, clear congested dockets, simplify t h e work
of t h e t r i a l court and save unnecessary costs a n d expenses.
Consolidation seeks to a t t a i n justice w i t h t h e least expense
a n d vexation to t h e l i t i g a n t s . The p r e s e n t tendency is to
p e r m i t consolidation w h e n e v e r possible a n d irrespective
of t h e d i v e r s i t y of t h e i s s u e s i n v o l v e d (Palanca vs.
Querubin, et al., L-29510-31, Nov. 29, 1969; Raymundo,
et al. vs. Felipe, L-30887, Dec. 24, 1971).
2. T h e r u l e on c o n s o l i d a t i o n of c a s e s g e n e r a l l y
applies only to cases p e n d i n g before t h e s a m e judge, not
to cases p e n d i n g in different b r a n c h e s of t h e s a m e court
or in different c o u r t s (PAL, et al. vs. Teodoro, et al.,
97 Phil. 461), a n d also a p p l i e s to s p e c i a l p r o c e e d i n g s
(Salazar vs. CFI of Laguna, infra); b u t w h e n e v e r
a p p r o p r i a t e , a n d in t h e i n t e r e s t of justice, consolidation of
cases in different b r a n c h e s of t h e same court or in different
courts can be effected. Consolidation of cases on a p p e a l
a n d assigned to different divisions of t h e S u p r e m e Court
or t h e Court of Appeals is also authorized, a n d generally
392
RULE 31 CONSOLIDATION OR SEVERANCE SEC. 1
the case which was appealed later and bearing the higher
docket n u m b e r is consolidated with the case having t h e
lower docket number.
3. As a r u l e , t h e consolidation of s e v e r a l cases
involving the same parties and subject-matter is
discretionary with the trial court. However, consolidation
of these cases becomes a m a t t e r of duty if two or more
cases a r e tried before t h e same judge, or, if filed with
different branches of t h e same Court of First Instance,
one of such cases has not been partially tried (Raymundo,
et al. vs. Felipe, supra). Subject to the qualification in
the latter case, it would seem t h a t the former doctrine t h a t
there is no time beyond which no consolidation of cases
can be effected is still valid (see Sideco vs. Paredes,
74 Phil. 6).
4. The t h r e e ways of consolidating cases are (a) by

recasting the cases already instituted, conducting only one
h e a r i n g a n d r e n d e r i n g o n l y o n e d e c i s i o n , (b) b y
consolidating t h e existing cases and holding only one
h e a r i n g a n d r e n d e r i n g only one decision, a n d (c) by
h e a r i n g only t h e p r i n c i p a l case a n d s u s p e n d i n g t h e
hearing on the others until judgment has been rendered
in t h e principal case (Salazar vs. CFI of Laguna, et al.,
64 Phil.785).
5. Cases can be consolidated for purposes of a single
appeal therefrom and a single decision can be rendered
thereon (Sideco vs. Paredes, supra).
6. On considerations of judicial economy and for the
convenience of the parties, the Supreme Court can also
order the consolidation of cases involving substantially the
same p a r t i e s a n d issues but which have been filed in
different courts of equal jurisdiction. Thus, where as a
consequence of a vehicular collision, a bus company filed
an action for damages against the other bus company in
the proper court in Quezon and the heirs of the deceased
393
p a s s e n g e r of one of t h e buses filed an action for d a m a g e s

a g a i n s t b o t h c o m p a n i e s i n C a v i t e w h e r e i n said h e i r s
were residents, the Supreme Court ordered the
consolidation of both cases in t h e Cavite court, instead of
r e q u i r i n g said heirs to intervene in t h e case in Quezon
(Superlines Trans. Co. vs. Victor, et al., G.R. No. 64250,
Sept. 30, 1983).
U n d e r t h e same consideration, t h e same procedure
w a s followed w h e r e , as a c o n s e q u e n c e of a v e h i c u l a r
collision, t h e p a s s e n g e r s of t h e bus b r o u g h t an action in
t h e t h e n C o u r t of F i r s t I n s t a n c e of A g u s a n del S u r on
culpa contractual, a n d t h e owner of t h e o t h e r vehicle sued
t h e bus company in Misamis Oriental. The Supreme Court
o r d e r e d t h e consolidation of both cases in t h e court of
A g u s a n del Sur, upon t h e further consideration t h a t the
case filed t h e r e i n h a d already been p e n d i n g prior to the
o t h e r action (Vallacar Transit, Inc., et al. vs. Yap, et al.,
G.R. No. 61308, Dec. 29, 1983).
S e c . 2. Separate trials. — The court, in

furtherance of convenience or to avoid prejudice,
may order a separate trial of any claim, cross-claim,
counterclaim, or third-party complaint, or of any
separate issue or of any number of claims, cross-
claims, counterclaims, third-party complaints or
i s s u e s . (2a)
NOTES
1. W h e n s e p a r a t e t r i a l of claims is conducted by t h e
court u n d e r this section, it may r e n d e r s e p a r a t e j u d g m e n t s
on each claim (see Sec. 5, Rule 36).
2. This provision permitting separate trials
p r e s u p p o s e s t h a t t h e c l a i m s involved a r e w i t h i n t h e
jurisdiction of t h e court. W h e n one of t h e claims is not
w i t h i n its jurisdiction, t h e s a m e should be dismissed, so
t h a t it m a y be filed in t h e proper court.
394
R U L E 32
TRIAL BY C O M M I S S I O N E R
S e c t i o n 1. Reference by consent. — By w r i t t e n
consent of both parties, the court may order any or
all of t h e i s s u e s in a c a s e to be r e f e r r e d to a
commissioner to be agreed upon by the parties or
to be appointed by the court. As used in these
Rules, the word "commissioner" includes a referee,
a n a u d i t o r a n d a n e x a m i n e r , ( l a , R33)
S e c . 2. Reference ordered on motion. — W h e n t h e

parties do not consent, the court may, upon the
a p p l i c a t i o n of e i t h e r or of its o w n m o t i o n , d i r e c t a
reference to a commissioner in the following cases:
(a) W h e n t h e trial o f a n i s s u e o f fact r e q u i r e s
t h e e x a m i n a t i o n of a l o n g a c c o u n t on e i t h e r s i d e ,
in which case the commissioner may be directed to
hear and report upon the whole issue or any specific
question involved therein;
(b) W h e n t h e t a k i n g o f a n a c c o u n t i s n e c e s s a r y
for t h e i n f o r m a t i o n o f t h e c o u r t before j u d g m e n t ,
or for c a r r y i n g a j u d g m e n t or o r d e r i n t o effect;
(c) W h e n a q u e s t i o n of fact, o t h e r t h a n u p o n
the pleadings, arises upon motion or otherwise, in
a n y s t a g e of a c a s e , or for c a r r y i n g a j u d g m e n t or
o r d e r i n t o effect. (2a, R33)
Sec. 3. Order of reference; powers of the commissioner.

— W h e n a r e f e r e n c e is m a d e , the clerk s h a l l
f o r t h w i t h f u r n i s h t h e c o m m i s s i o n e r w i t h a c o p y of
t h e o r d e r o f r e f e r e n c e . The o r d e r m a y specify o r
limit t h e p o w e r s of t h e c o m m i s s i o n e r , and may direct
him to report only upon particular issues, or to do
or perform particular acts, or to receive and report
395
e v i d e n c e o n l y , a n d m a y fix t h e d a t e for b e g i n n i n g
a n d c l o s i n g t h e h e a r i n g s a n d for t h e f i l i n g o f h i s
report. S u b j e c t t o t h e s p e c i f i c a t i o n s a n d l i m i t a t i o n s
stated in the order, the commissioner has and shall
exercise the power to regulate the proceedings in
e v e r y h e a r i n g b e f o r e h i m a n d t o d o all a c t s a n d t a k e
all m e a s u r e s n e c e s s a r y o r p r o p e r for t h e e f f i c i e n t
performance of his duties under the order. He may
i s s u e s u b p o e n a s a n d s u b p o e n a s duces tecum, s w e a r
witnesses, and unless otherwise provided in the
order of reference, he may rule upon the
admissibility of evidence. The trial or hearing
b e f o r e h i m s h a l l p r o c e e d i n all r e s p e c t s a s i t w o u l d
i f h e l d b e f o r e t h e c o u r t . (3a, R33)
NOTES
1. In the proceedings u n d e r this section, the

commissioner may rule upon t h e admissibility of evidence,
u n l e s s o t h e r w i s e provided in t h e order of reference. In
r e c e p t i o n of e v i d e n c e before t h e c l e r k of c o u r t u n d e r
t h e provisions of Sec. 9, Rule 30, t h e clerk does not have
t h a t power a n d he shall j u s t receive t h e evidence subject
to t h e objections interposed t h e r e t o a n d such questions or
objections shall be resolved by t h e court after t h e clerk
h a s s u b m i t t e d his r e p o r t to it.
2. W h a t Sec. 3 a u t h o r i z e s to be limited is t h e scope
o f t h e p r o c e e d i n g s before t h e c o m m i s s i o n e r , n o t t h e
modality thereof. The order of reference may direct t h e
commissioner to perform different acts in a n d for purposes
of t h e proceedings but, w h a t e v e r m a y be t h e case, the
r e q u i r e m e n t for him to hold a h e a r i n g cannot be dispensed
w i t h as t h i s is t h e essence of due process (Aljem's Corp.,
etc. vs. CA, et al., G.R. No. 122216, Mar. 28, 2001).
S e c . 4. Oath of commissioner. — B e f o r e e n t e r i n g
upon his duties the commissioner shall be sworn
396
RULE 32 TRIAL BY COMMISSIONER SECS. 5-9
to a faithful and h o n e s t performance thereof.

(14, R33)
S e c . 5. Proceedings before commissioner. — U p o n

receipt of the order of reference and unless
otherwise provided therein, the commissioner shall
f o r t h w i t h s e t a t i m e a n d p l a c e for t h e first m e e t i n g
of the parties or their counsel to be held within ten
(10) d a y s after t h e d a t e o f t h e o r d e r o f r e f e r e n c e a n d
s h a l l notify t h e p a r t i e s o r t h e i r c o u n s e l . (5a, R33)
S e c . 6. Failure of parties to appear before

commissioner. — If a p a r t y fails to a p p e a r at t h e t i m e
and p l a c e a p p o i n t e d , t h e c o m m i s s i o n e r m a y p r o c e e d
e x parte o r , i n h i s d i s c r e t i o n , a d j o u r n t h e
proceedings to a future day, giving notice to the
absent party or his counsel of the adjournment.
(6a, R33)
S e c . 7. Refusal of witness. — T h e r e f u s a l of a
w i t n e s s to obey a s u b p o e n a issued by the
c o m m i s s i o n e r o r t o g i v e e v i d e n c e before h i m , s h a l l
be d e e m e d a contempt of the court which appointed
t h e c o m m i s s i o n e r . (7a, R33)
S e c . 8. Commissioner shall avoid delays. — It is

t h e d u t y o f t h e c o m m i s s i o n e r t o p r o c e e d w i t h all
reasonable diligence. Either party, on notice to
the parties and commissioner, may apply to the
c o u r t for a n o r d e r r e q u i r i n g t h e c o m m i s s i o n e r t o
e x p e d i t e t h e p r o c e e d i n g s a n d t o m a k e h i s report.
(8a, R33)
S e c . 9. Report of commissioner. — U p o n t h e
completion of the trial or hearing or proceeding
before t h e c o m m i s s i o n e r , h e shall file w i t h t h e c o u r t
his report in writing upon the matters submitted to
397
him by the order of reference. When his powers

are not specified or limited, he shall set forth his
f i n d i n g s o f fact a n d c o n c l u s i o n s o f l a w i n h i s r e p o r t .
He shall a t t a c h t h e r e t o all exhibits, affidavits,
depositions, papers and the transcript, if any, of the
t e s t i m o n i a l e v i d e n c e p r e s e n t e d before h i m . (9a, R33)
S e c . 10. Notice to parties of the filing of report. —

Upon t h e filing of the report, the parties shall be
notified by the clerk, and they shall be allowed ten
(10) d a y s w i t h i n w h i c h t o s i g n i f y g r o u n d s o f
objection to the findings of the report, if they so
desire. Objections to the report based upon grounds
which were available to the parties during the
proceedings before the commissioner, other than
objections to the findings and conclusions therein
set forth, shall not be c o n s i d e r e d by the court unless
t h e y w e r e m a d e b e f o r e t h e c o m m i s s i o n e r . (10, R33)
S e c . 11. Hearing upon report. — U p o n t h e

e x p i r a t i o n o f t h e p e r i o d o f t e n (10) d a y s r e f e r r e d t o
i n t h e p r e c e d i n g s e c t i o n , t h e r e p o r t s h a l l b e s e t for
hearing, after w h i c h the court shall issue an order
adopting, modifying, or rejecting the report in
whole or in part, or r e c o m m i t t i n g it with
instructions, or requiring the parties to present
further e v i d e n c e before the c o m m i s s i o n e r or the
c o u r t . (11a, R33)
S e c . 12. Stipulations as to findings. — W h e n t h e

parties stipulate that a commissioner's findings of
fact shall be final, only q u e s t i o n s of law shall
t h e r e a f t e r b e c o n s i d e r e d . (12a, R33)
S e c . 13. Compensation of commissioner. — T h e

Court shall allow the commissioner such
reasonable compensation as the circumstances of
398
RULE 32 TRIAL BY COMMISSIONER S E C . 13
the case warrant, to be taxed as costs against the

d e f e a t e d party, o r a p p o r t i o n e d , a s j u s t i c e r e q u i r e s .
(13, R33)
NOTES
1. When t h e commissioner did not hold a hearing

in violation of Sec. 3 of this Rule, it is error for t h e trial
court to issue an order approving said commissioner's report
over the objection of the aggrieved party (Jaca vs. Davao
Lumber Co., et al, L-25771, Mar. 29, 1982).
2. It s h o u l d also be noted, in p a s s i n g , t h a t t h e
former Rule 32 which provided for trial with assessors has
not been reproduced in the p r e s e n t revision of the Rules.
399
RULE 33
D E M U R R E R TO E V I D E N C E
S e c . 1. Demurrer to evidence.—After t h e plaintiff

has completed the presentation of his evidence, the
d e f e n d a n t m a y m o v e for d i s m i s s a l o n t h e g r o u n d
that u p o n the facts and the law the plaintiff has
s h o w n n o r i g h t t o relief. I f h i s m o t i o n i s d e n i e d , h e
shall have the right to present evidence. If his
motion is granted but on appeal the order of
dismissal is reversed he shall be deemed to have
w a i v e d t h e r i g h t t o p r e s e n t e v i d e n c e , ( l a , R35)
NOTES
1. A d e m u r r e r to evidence is a motion to dismiss on

t h e ground of insufficiency of evidence a n d is p r e s e n t e d
after t h e plaintiff r e s t s his case. It t h u s differs from a
motion to dismiss u n d e r Rule 16 which is grounded on
p r e l i m i n a r y objections a n d is p r e s e n t e d at t h e o u t s e t of
t h e case, i.e., generally, before a responsive pleading is
filed by t h e m o v a n t a n d w i t h i n t h e period for t h e filing
thereof. See Note 1 u n d e r Sec. 1, Rule 16.
2. In t h e l a n g u a g e of t h e S u p r e m e Court, a
d e m u r r e r to evidence may be issued where, upon the
facts a n d t h e law, t h e plaintiff h a s shown no r i g h t to relief.
Where the plaintiffs evidence together with such
inferences a n d conclusions as may reasonably be d r a w n
therefrom does not w a r r a n t recovery against the
d e f e n d a n t , a d e m u r r e r to evidence should be s u s t a i n e d .
A d e m u r r e r to evidence is likewise s u s t a i n a b l e w h e n ,
a d m i t t i n g every proven fact favorable to t h e plaintiff a n d
i n d u l g i n g in his favor all conclusions fairly and
r e a s o n a b l y inferable t h e r e f r o m , t h e plaintiff h a s failed
to m a k e o u t one or more of t h e m a t e r i a l e l e m e n t s of his
case, or w h e n t h e r e is no evidence to s u p p o r t an allegation
400
RULE 33 DEMURRER TO EVIDENCE SEC. 1
necessary to his claim. It should be s u s t a i n e d w h e r e t h e

p l a i n t i f f s e v i d e n c e is prima facie insufficient for a
recovery ( Heirs of Emilio Santioque vs. Heirs of Emilio
Calma, G.R. No. 160832, Oct. 27, 2006).
3. Defendants who p r e s e n t a d e m u r r e r to the

plaintiffs evidence r e t a i n the right to p r e s e n t their own
evidence, if t h e trial court disagrees with them; if the trial
court agrees with them, but on appeal, t h e appellate court
disagrees with both of t h e m and reverses the dismissal
order, t h e defendants lose t h e right to p r e s e n t their own
evidence. The appellate court shall, in addition, resolve
the case and render j u d g m e n t on the merits, inasmuch
as a d e m u r r e r aims to discourage prolonged litigations.
I t c a n n o t r e m a n d t h e c a s e for f u r t h e r p r o c e e d i n g s
(Radiowealth Finance Co. vs. Del Rosario, et al., G.R.
No. 138739, July 6, 2000).
4. If an order of dismissal under this Rule is reversed
on appeal, the decision of the appellate court will be based
only on t h e evidence of t h e plaintiff as t h e d e f e n d a n t
loses his right to have the case remanded for reception
of his evidence (see Siayngco vs. Costibolo, L-22506,
Feb. 28, 1969).
5. Where the defendant's motion is sustained and
the case is dismissed under this Rule, such order would be
an adjudication on t h e merits, hence the requirement in
Sec. 1, Rule 36 t h a t said judgment should state clearly
and distinctly the facts and the law on which it is based,
should be complied with. Where, however, the d e m u r r e r
is denied, the denial order is interlocutory in nature, hence
Sec. 1, Rule 36 h a s no application (Nepomuceno, et al. vs.
Commission on Elections, et al., G.R. No. 60601, Dec. 29,
1983). Such denial order is not controllable by certiorari,
absent an oppressive exercise of judicial authority
(Bautista, et al. vs. Sarmiento, et al., L-45137, Sept. 23,
1985; David, et al. vs. Rivera, G.R. Nos. 139913 a n d
140159, Jan. 16, 2004).
401
6. F o r t h e c o u n t e r p a r t b u t c o n t r a r y f e a t u r e s in
c r i m i n a l c a s e s , s e e Sec. 2 3 , R u l e 119 a n d t h e n o t e s
thereunder.
402
RULE 34
J U D G M E N T O N THE P L E A D I N G S
S e c t i o n 1. Judgment on the pleadings. — W h e r e

an a n s w e r fails to tender an issue, or otherwise
admits the material allegations of the adverse
party's p l e a d i n g , t h e c o u r t m a y , o n m o t i o n o f t h a t
party, d i r e c t j u d g m e n t o n s u c h p l e a d i n g . H o w e v e r ,
i n a c t i o n s for d e c l a r a t i o n o f n u l l i t y o r a n n u l m e n t
o f m a r r i a g e o r for l e g a l s e p a r a t i o n , t h e m a t e r i a l
facts alleged in the complaint shall always be
p r o v e d , ( l a , R19)
NOTES
1. A j u d g m e n t on the pleadings presupposes t h a t

t h e r e is no controverted issue whatsoever between the
p a r t i e s , h e n c e t h e p l a i n t i f f i s also a s s u m e d t o h a v e
a d m i t t e d a l l t h e r e l e v a n t a l l e g a t i o n s o f fact o f
the defendant in his answer (Evangelista vs. De la Rosa,
76 Phil. 115; Mercy's, Inc. vs. Verde, L-21571, Sept. 29,
1966). The j u d g m e n t is, therefore, based exclusively upon
the allegations a p p e a r i n g in the pleadings of the parties
and t h e a n n e x e s thereto, if any, without consideration
of any evidence aliunde (see Rodriguez vs. Llorente,
49 Phil. 823).
2. The plaintiff, by moving for j u d g m e n t on t h e
p l e a d i n g s , is not deemed to have a d m i t t e d irrelevant
allegations in the defendant's answer (Araneta vs. Perez,
L-20787-8, June 29, 1965); n e i t h e r is t h e d e f e n d a n t
d e e m e d to h a v e a d m i t t e d a l l e g a t i o n s of d a m a g e s in
t h e c o m p l a i n t (Abubakar Tan vs. Tian Ho, L-18820,
Dec. 29, 1962; Delfin vs. CAR, L-23348, Mar. 14, 1967),
hence t h e r e can be no award of damages in said judgment
in the absence of proof (Lichauco vs. Guash, 76 Phil. 5).
403
RULE 34 REMEDIAL LAW COMPENDIUM 8EC. 1
3. U n d e r t h i s Rule, a j u d g m e n t on t h e pleadings
m u s t be on motion of t h e claimant. However, if at the
pre-trial, t h e court finds t h a t a j u d g m e n t on t h e pleadings
is p r o p e r , it m a y r e n d e r s u c h j u d g m e n t motu proprio
(Sec. 2[g], Rule 18).
4. The t r i a l court may r e n d e r a j u d g m e n t on t h e
pleadings if, after t h e pre-trial, t h e facts w a r r a n t such
a j u d g m e n t (Taleon vs. Sec. of Public Works &
Communications, L-24281, May 19, 1967).
5. Distinctions b e t w e e n j u d g m e n t on t h e pleadings
a n d s u m m a r y j u d g m e n t (Rule 35):
a. J u d g m e n t on the pleadings is proper when it
a p p e a r s t h a t t h e r e is no genuine issue between t h e parties;
a s u m m a r y j u d g m e n t is p r o p e r even if t h e r e is an issue as
to d a m a g e s recoverable.
b. J u d g m e n t on t h e p l e a d i n g s is based exclusively
upon t h e p l e a d i n g s w i t h o u t i n t r o d u c t i o n of evidence; a
s u m m a r y j u d g m e n t is based not only on t h e pleadings but
also upon t h e affidavits, depositions a n d admissions of the
p a r t i e s showing t h a t , except as to t h e a m o u n t of d a m a g e s ,
t h e r e is no g e n u i n e issue.
c. J u d g m e n t on t h e p l e a d i n g s is available in any
action, except for d e c l a r a t i o n of nullity or a n n u l m e n t of
m a r r i a g e a n d legal s e p a r a t i o n ; a s u m m a r y j u d g m e n t is
p r o p e r only in actions to recover a debt, or for a liquidated
s u m of money, or for declaratory relief.
d. A motion for j u d g m e n t on t h e pleadings is subject
only to t h e 3-day notice rule (Sec. 4, Rule 15) a n d w h e r e
all t h e m a t e r i a l a v e r m e n t s of t h e complaint a r e a d m i t t e d ,
such motion m a y even be m a d e ex parte (Cruz vs. Oppen,
L-23861, Feb. 17, 1968); a motion for s u m m a r y j u d g m e n t
r e q u i r e s prior 10-day notice (Sec. 3, Rule 35). See also
Narra Integrated Corp. vs. CA, et al. (G.R. No. 137915,
Nov. 15, 2000).
404
RULE 34 JUDGMENT ON THE PLEADINGS SEC. 1
6. J u d g m e n t s on the pleadings and summary

j u d g m e n t s are also to be distinguished from judgments by
default. It will be observed t h a t in default j u d g m e n t
(a) g e n u i n e i s s u e s of fact a n d / o r law a r e n o r m a l l y
involved; (b) evidence must be introduced on the material
allegations, albeit ex parte, except in cases covered by the
rule on s u m m a r y procedure; (c) all cases may be subject
to j u d g m e n t s by default, except those for a n n u l m e n t or
declaration of nullity of marriage or legal separation; and
(d) motions for default j u d g m e n t s may be filed ex parte,
except u n d e r t h e rule on s u m m a r y procedure wherein
upon failure of d e f e n d a n t to a n s w e r , t h e court, motu
proprio o r o n p l a i n t i f f s m o t i o n , s h a l l r e n d e r t h e
corresponding judgment.
7. As provided in Sec. 1 of this Rule, a j u d g m e n t on

the pleadings is not allowed in actions for declaration of
nullity or a n n u l m e n t of marriage or for legal separation.
The s a m e prohibition applies to a s u m m a r y j u d g m e n t
(see Note 2 under Secs. 1 and 2, Rule 35). For t h a t matter,
an o r d e r of d e f a u l t a n d a j u d g m e n t by d e f a u l t a r e
proscribed in actions for declaration of nullity of marriage
or for legal separation (Sec. 3[eJ, Rule 9). The foregoing
prohibitions are based on and expressive of the concern
a n d p r o t e c t i o n e x t e n d e d b y t h e S t a t e t o t h e social
institution of marriage.
This protective policy on the marital vinculum is now
further enhanced by special procedural rules on actions
involving the validity of marriage or for legal separation
of t h e s p o u s e s . On M a r c h 4, 2003, and effective
M a r c h 15, 2 0 0 3 , t h e S u p r e m e C o u r t a p p r o v e d a n d
p r o m u l g a t e d i n A.M. No. 0 2 - 1 1 - 1 0 - S C t h e Rule o n
Declaration of Absolute Nullity of Void Marriages and
Annulment of Voidable Marriages (Appendix AA) and, in
A.M. No. 02-11-11-SC, t h e Rule on Legal S e p a r a t i o n
(Appendix BB).
405
RULE 35
SUMMARY J U D G M E N T S
S e c t i o n 1. Summary judgment for claimant. — A

party seeking to recover upon a claim,
c o u n t e r c l a i m , or cross-claim or to obtain a
declaratory relief may, at any time after the
pleading in answer thereto has been served, move
with supporting affidavits, depositions or
a d m i s s i o n s for a s u m m a r y j u d g m e n t i n h i s f a v o r
u p o n a l l o r a n y p a r t t h e r e o f , ( l a , R34)
S e c . 2. Summary judgment for defending party. —

A p a r t y a g a i n s t w h o m a claim, c o u n t e r c l a i m , or
cross-claim is a s s e r t e d or a d e c l a r a t o r y relief is
sought may, at any time, move with supporting
a f f i d a v i t s , d e p o s i t i o n s o r a d m i s s i o n s for a s u m m a r y
j u d g m e n t in his favor as to all or a n y p a r t thereof.
(2a, R34)
NOTES
1. F o r d i s t i n c t i o n s b e t w e e n a j u d g m e n t on t h e
p l e a d i n g s a n d a s u m m a r y j u d g m e n t , see t h e notes u n d e r
Sec. 1, Rule 34.
2. While t h e Rule does not specifically so provide, a

s u m m a r y j u d g m e n t i s not p r o p e r i n a n action for t h e
a n n u l m e n t or d e c l a r a t i o n of nullity of a m a r r i a g e (and
also in legal s e p a r a t i o n ) , j u s t as in t h e case of a j u d g m e n t
o n t h e p l e a d i n g s , a s t h i s Rule refers t o a n a c t i o n "to
recover upon a claim," etc., t h a t is, to recover a debt or a
liquidated d e m a n d for money (Roque vs. Encarnacion,
et al., 95 Phil. €43). S u m m a r y j u d g m e n t s , however, are
made specifically applicable to t h e special civil action for
d e c l a r a t o r y relief (Rule 63).
406
RULE 35 SUMMARY JUDGMENTS SEC. 3
3. The provisions of this Rule have been amended

to allow the parties to submit not only affidavits but also
depositions or admissions in support of their respective
contentions.
S e c . 3. Motion and proceedings thereon. — T h e

m o t i o n s h a l l b e s e r v e d a t l e a s t t e n (10) d a y s b e f o r e
t h e t i m e s p e c i f i e d for t h e h e a r i n g . T h e a d v e r s e
p a r t y m a y serve o p p o s i n g affidavits, depositions,
o r a d m i s s i o n s a t l e a s t t h r e e (3) d a y s b e f o r e t h e
h e a r i n g . After t h e h e a r i n g , t h e j u d g m e n t s o u g h t
shall be rendered forthwith if the pleadings,
s u p p o r t i n g affidavits, depositions, a n d admissions
o n file, s h o w t h a t , e x c e p t a s t o t h e a m o u n t o f
damages, there is no genuine issue as to any
m a t e r i a l fact a n d t h a t t h e m o v i n g p a r t y i s e n t i t l e d
to a j u d g m e n t as a m a t t e r of l a w . (3a, R34)
NOTES
1. S u m m a r y judgment is proper only when there is

clearly no genuine issue as to any material fact in the
action, and if t h e r e is any question or controversy upon
any question of fact, there should be a trial on the merits
(Agcanas vs. Nagum, L-20707, Mar. 30, 1970; Solidbank
Corp. vs. CA, et al., G.R. No. 120010, Oct. 3, 2002).
2. In a motion for s u m m a r y judgment, the crucial

question is w h e t h e r the issues raised in the pleadings are
either genuine, s h a m or fictitious, as shown by affidavits,
depositions, or admissions accompanying the motion.
A genuine issue means an issue of fact which calls
for the presentation of evidence, as distinguished from
an i s s u e w h i c h is f i c t i t i o u s or c o n t r i v e d so as not
to c o n s t i t u t e a genuine issue for t r i a l (Manufacturers
Hanover Trust Co., et al. vs. Guerrero, G.R. No. 136804,
Feb. 19, 2003).
407
3. Summary judgment is not proper where the

d e f e n d a n t p r e s e n t e d defenses t e n d e r i n g factual issues
which call for t h e p r e s e n t a t i o n of evidence (Villanueva
vs. NAMARCO, L-27441, June 30, 1969; Guevarra, et al.
vs. CA, et al., L-49017 and L-49024, Aug. 30, 1983; R&B
Surety & Insurance Co., et al. vs. Savellano, et al., L-45234,
May 8, 1985), as w h e r e t h e defendant specifically denied
t h e m a t e r i a l a l l e g a t i o n s in t h e c o m p l a i n t (Tamo vs.
Gironella, et al., L-41714, Oct. 29, 1976). Furthermore,
t h e r e m u s t be a motion for s u m m a r y j u d g m e n t a n d a
h e a r i n g of s a i d m o t i o n , t h e n o n - o b s e r v a n c e of w h i c h
p r o c e d u r a l r e q u i r e m e n t s w a r r a n t s t h e s e t t i n g aside of t h e
s u m m a r y j u d g m e n t (Cadirao, et al. vs. Estenzo, L-42408,
Sept. 21, 1984).
4. The t e s t for t h e propriety of a motion for s u m m a r y

j u d g m e n t is w h e t h e r t h e pleadings, affidavits a n d exhibits
in s u p p o r t of t h e motion a r e sufficient to overcome t h e
opposing p a p e r s a n d to justify t h e finding t h a t , as a m a t t e r
of law, t h e r e is no defense to t h e action or t h e claim is
c l e a r l y m e r i t o r i o u s (Estrada vs. Consolacion, et al.,
L-40948, June 29, 1976).
5. W h e r e t h e motion for s u m m a r y j u d g m e n t is duly

verified a n d is b a s e d on facts a d m i t t e d by t h e a d v e r s e
p a r t y , e i t h e r expressly or impliedly, affidavits on such
m a t t e r s need not be s u b m i t t e d (Motor Service Co. vs.
Yellow Taxicab Co., 96 Phil. 688).
6. An accounting o r d e r in a s u m m a r y j u d g m e n t is
of an interlocutory n a t u r e a n d is not appealable (Talastas
vs. Abella, L-26398, Oct. 25, 1968).
7. U n d e r Sec. 3 of t h i s Rule, s u m m a r y j u d g m e n t
may not be r e n d e r e d on t h e amount of d a m a g e s , a l t h o u g h
such j u d g m e n t may be e n t e r e d on t h e issue of t h e right to
damages. Thereafter, t h e court may proceed to assess
t h e a m o u n t recoverable (Jugador vs. he Vera, 94 Phil.
704). Also, t h e court c a n n o t impose a t t o r n e y ' s fees in a
408
RULE 35 SUMMARY JUDGMENTS SEC. 4
s u m m a r y j u d g m e n t in t h e absence of proof as to t h e
a m o u n t thereof (Warner, Barnes & Co. vs. Luzon Surety
Co., 95 Phil. 924).
8. In case of doubt as to the propriety of a s u m m a r y

judgment, t h e doubt shall be resolved against the moving
party. The court should t a k e t h a t view of evidence most
favorable to t h e p a r t y against whom it is directed and give
t h a t p a r t y t h e benefit of all favorable inferences
(Gatchalian vs. Pavillin, et al, L-17619, Oct. 31, 1962).
9. Mere denials, unaccompanied by any fact which

would be admissible in evidence at a hearing, a r e not
sufficient to raise a genuine issue of fact sufficient to defeat
a motion for s u m m a r y j u d g m e n t [Plantadosi vs. Loew's
Inc., 7 Fed. Rules Service, 786, June 2, 1943] even though
such issue was formally raised by the pleadings [Fletcher
vs. Krise, 4 Fed. Rules Service, 765, Mar. 3, 1941]. Where
all the facts are within the judicial knowledge of the court,
s u m m a r y j u d g m e n t may be granted as a m a t t e r of right
[Fletcher vs. Evening Newspaper Co., 3 Fed. Rules Service,
539, June 28, 1940] (Miranda vs. Malate Garage &
Taxicab, Inc., 99 Phil. 670).
S e c . 4. Case not fully adjudicated on motion. —

If on motion under this Rule, judgment is not
r e n d e r e d u p o n t h e w h o l e c a s e o r for all t h e r e l i e f s
sought and a trial is necessary, the court at the
hearing of the motion, by examining the pleadings
and the e v i d e n c e before it and by interrogating
counsel shall ascertain what material facts exist
w i t h o u t substantial controversy and w h a t are
a c t u a l l y a n d i n g o o d faith c o n t r o v e r t e d . I t s h a l l
t h e r e u p o n m a k e a n o r d e r s p e c i f y i n g t h e facts t h a t
appear without substantial controversy, including
the extent to which the amount of damages
or o t h e r r e l i e f is n o t in c o n t r o v e r s y , a n d d i r e c t i n g
such further p r o c e e d i n g s in the action as are
409
just. The facts so specified shall be deemed

established, and the trial shall be conducted on the
c o n t r o v e r t e d f a c t s a c c o r d i n g l y . (4a, R34)
NOTE
1. While Sec. 4 of t h i s Rule a u t h o r i z e s t h e rendition

of a p a r t i a l s u m m a r y j u d g m e n t , such j u d g m e n t is
interlocutory in n a t u r e a n d is not a final a n d appealable
j u d g m e n t . The a p p e a l from t h e p a r t i a l a n d appealable
j u d g m e n t should be t a k e n t o g e t h e r w i t h t h e j u d g m e n t in
t h e e n t i r e case after t h e t r i a l shall have been conducted
on t h e m a t e r i a l facts on which a s u b s t a n t i a l controversy
e x i s t s (Guevarra, et al. vs. CA, et al., L-49017 a n d
L-49024, Aug. 30, 1983).
S e c . 5. Form of affidavits and supporting papers.

— S u p p o r t i n g and o p p o s i n g affidavits shall be made
on p e r s o n a l k n o w l e d g e , shall set forth s u c h facts
as would be admissible in evidence, and shall show
affirmatively that the affiant is c o m p e t e n t to testify
to the matters stated therein. Certified true copies
of all p a p e r s or parts t h e r e o f referred to in the
affidavit shall be attached thereto or served
t h e r e w i t h . ( 5 a , R34)
S e c . 6. Affidavits in bad faith. — S h o u l d it a p p e a r

to its satisfaction at any time that any of t h e
affidavits presented pursuant to this Rule are
p r e s e n t e d i n b a d f a i t h , o r s o l e l y for t h e p u r p o s e o f
delay, the court shall forthwith order the offending
party or counsel to pay to the other party the
a m o u n t of the reasonable e x p e n s e s w h i c h the filing
of the affidavits caused him to incur, including
attorney's fees. It may, after hearing, further
adjudge the offending party or counsel guilty of
c o n t e m p t . ( 6 a , R34)
410
RULE 35 S E C S . 5-6
NOTE
1. The sanctions for violations of the provisions of

these sections shall be imposed not only on the offending
party but also upon his counsel. The contumacious conduct
c o n t e m p l a t e d h e r e i n a r e in t h e n a t u r e of i n d i r e c t or
constructive contempt, hence the same shall be punished
only after hearing, p u r s u a n t to Sec. 3 of Rule 71.
411
RULE 36
JUDGMENTS, FINAL ORDERS

AND ENTRY THEREOF
Section 1. Rendition of judgments and final

orders. — A j u d g m e n t or f i n a l o r d e r d e t e r m i n i n g
the merits of the case shall be in writing personally
and directly prepared by the judge, stating clearly
and distinctly the facts and the law on w h i c h it
is b a s e d , s i g n e d by him, and filed w i t h t h e clerk
of court, (la)
NOTES
1. The decision of t h e court is t h e e n t i r e document

p r e p a r e d a n d p r o m u l g a t e d b y it, a d j u d i c a t i n g a n d
d e t e r m i n i n g the rights of the parties to the case. It
c o n t a i n s t h e findings of fact a n d law, t h e r e a s o n s and
evidence to s u p p o r t such findings, as well as t h e discussion
of issues leading up to its d e t e r m i n a t i o n . The dispositive
or d e c r e t a l portion or t h e fallo is w h a t actually constitutes
t h e j u d g m e n t or resolution of t h e court a n d which can be
t h e subject of execution, a l t h o u g h t h e o t h e r p a r t s of the
decision m a y be resorted to in order to d e t e r m i n e t h e ratio
decidendi for such j u d g m e n t or resolution.
2. W h e r e t h e r e is a conflict b e t w e e n t h e dispositive
portion of t h e decision a n d t h e body thereof, t h e dispositive
portion controls irrespective of w h a t a p p e a r s in t h e body
of t h e decision. H o w e v e r , an e x c e p t i o n is recognized
w h e r e t h e inevitable conclusion from t h e findings of fact
in t h e opinion is so indubitable a n d clear as to show t h a t
t h e r e w a s a m i s t a k e in t h e dispositive portion (Aguirre, et
al. vs. Aguirre, et al., L-33080, Aug. 15, 1974), or w h e r e
explicit discussion a n d s e t t l e m e n t of t h e issue is found in
t h e body of t h e decision (Millare vs. Millare, 106 Phil.
412
RULE 36 JUDGMENTS, FINAL ORDERS SEC. 1
AND ENTRY THEREOF
293; Chung, et al. vs. China National Cereals, etc., Corp.,

et al., G.R. No. 131502, June 8, 2000).
But when the dispositive p a r t of a final order or
decision is definite, clear and unequivocal a n d can be
wholly given effect without the need of interpretation or
construction, the same is considered as the j u d g m e n t of
the court to t h e exclusion of anything said in the body
thereof (Contreras vs. Felix, 78 Phil. 570; Edward vs.
Arce, 98 Phil. 688; Olac, et al. vs. CA, et al., G.R.
No. 89256, Sept. 2, 1992).
3. The special forms of j u d g m e n t s u n d e r the Rules

and jurisprudence a r e :
a. J u d g m e n t by default (Sec. 3, Rule 9);
b. J u d g m e n t on the pleadings (Rule 34);
c. S u m m a r y j u d g m e n t (Rule 35);
d. Several j u d g m e n t (Sec. 4, Rule 36);
e. S e p a r a t e j u d g m e n t (Sec. 5, Rule 36);
f. J u d g m e n t for specific acts (Sec. 10, Rule 39);
g. Special j u d g m e n t (Sec. 11, Rule 39);
h. J u d g m e n t upon confession;
i. J u d g m e n t upon compromise, or on consent or
agreement;
j. "Clarificatory" judgment; and
k. J u d g m e n t nunc pro tunc.
4. J u d g m e n t s upon confession or upon compromise
stand on the same footing in the sense t h a t they cannot
be e n t e r e d into by counsel without the knowledge and
special authority of the client (Manufacturers Bank &
Trust Co. vs. Woodworks, Inc., L-29453, Dec. 28, 1970).
Both a r e i m m e d i a t e l y executory (Samonte, et al. vs.
Samonte, et al., L-40683, June 27, 1975), unless otherwise
413
provided in t h e j u d g m e n t , as may be prayed for or agreed

upon by t h e p a r t i e s fsee Vda. de Corpus vs. Phodaca-
Ambrosio, L-30206, Mar. 30, 1970). See also Art. 2032,
Civil Code, r e q u i r i n g c o u r t a p p r o v a l for c o m p r o m i s e s
entered into by p a r e n t s , guardians, representatives,
a d m i n i s t r a t o r s , a n d executors; and Art. 1878(3) of said
Code w h i c h p r o v i d e s t h a t a t h i r d p e r s o n c a n n o t bind
a n o t h e r to a compromise a g r e e m e n t u n l e s s s u c h t h i r d
person h a s obtained a special power of a t t o r n e y for t h a t
p u r p o s e from t h e p a r t y to be bound.
However, a j u d g m e n t on consent is not to be fully
e q u a t e d w i t h a j u d g m e n t by confession. The former is
one t h e provisions a n d t e r m s of which a r e s e t t l e d and
a g r e e d upon by t h e p a r t i e s to t h e action, a n d which is
e n t e r e d in t h e record by t h e consent of t h e court. There
m u s t be unqualified a g r e e m e n t among t h e p a r t i e s to be
bound by t h e j u d g m e n t on consent before said j u d g m e n t
may be so e n t e r e d a n d t h e court does not have t h e power
t o s u p p l y t e r m s , p r o v i s i o n s o r e s s e n t i a l d e t a i l s not
previously a g r e e d to by t h e p a r t i e s . On t h e o t h e r h a n d , a
j u d g m e n t by confession is not a plea b u t an affirmative
a n d v o l u n t a r y act of t h e d e f e n d a n t himself a n d t h e court
exercises a c e r t a i n a m o u n t of supervision over t h e e n t r y
of j u d g m e n t , as well as equitable jurisdiction over t h e i r
s u b s e q u e n t s t a t u s (Republic vs. Bisaya Land Trans. Co.,
Inc., et al., L 31490, Jan. 6, 1978).
5. As a r u l e , a j u d g m e n t u p o n c o m p r o m i s e is
i m m e d i a t e l y e x e c u t o r y (Pamintuan vs. Muhos, et al.,
L-26331, Mar. 15, 1968; Central Bank vs. CA, et al.,
L-38224, Dec. 10, 1974; Pasay City Gov't, et al. vs. CFI of
Manila, et al, L 32162, Sept. 28, 1984) in t h e absence of
a motion to set t h e s a m e aside on t h e ground of fraud,
m i s t a k e , etc. (Cadano vs. Cadano, L-34998, Jan. 11, 1973;
Zagala, et al. vs. Jimenez, et al, L 33050, July 23, 1987),
and if such motion is m a d e and denied, a p p e a l may be
t a k e n from t h a t o r d e r of denial (De los Reyes vs. Ugarte,
75 Phil. 505; Enriquez vs. Padilla, 77 Phil. 373). In
414
AND ENTRY THEREOF
Mabale, et al. vs. Apalisok, et al. (L-46942, Feb. 6, 1979),

the Supreme Court held t h a t to be entitled to appeal from
a j u d g m e n t on compromise, a party must not only move to
set aside t h e j u d g m e n t but m u s t also move to set aside or
a n n u l t h e compromise agreement itself. A judgment
r e n d e r e d p u r s u a n t to a compromise is not appealable
(Montejo vs. Urotia, L-27187, July 22, 1971) and has the
effect of res judicata from t h e moment it is r e n d e r e d
(Dormitorio vs. Fernandez, et al., L-25889, Aug. 21, 1976;
Arcenas, et al. vs. Cinco, L-29288, Nov. 29, 1976). Where
a compromise a g r e e m e n t of the litigants is not contrary to
law, judicial decisions, morals, good customs or public
policy, t h e court cannot impose a judgment different from
the t e r m s of said a g r e e m e n t (PCIB vs. Echiverri, L-41795,
Aug. 20, 1980).
6. In a case, it was held t h a t where a judgment based

on a compromise is sought to be enforced against a person
who was not a party thereto, he may file an original petition
for certiorari to quash the writ of execution. He could not
move to have the compromise set aside and then appeal
from t h e order denying his motion since he is not a party
to the compromise or the j u d g m e n t therein. A petition for
relief would be an inadequate remedy as the execution was
already being carried out (Jacinto vs. Montesa, L-23098,
Feb. 28, 1967).
7. A compromise agreement, once approved by the
court, has the force of res judicata between the parties
and should not be disturbed except for vices of consent or
forgery (see Arts. 2037 and 2038, Civil Code). No decree
of legal separation can be granted if based exclusively on
a confession of j u d g m e n t (Art. 101, Civil Code, now,
Art. 60, Family Code; Ocampo vs. Florenciano, 107 Phil.
35). The same rule applies to actions for a n n u l m e n t of
marriage (Art. 88, Civil Code; now, Art. 48, Family Code).
8. W h i l e a j u d g m e n t u p o n confession m a y be
rendered when the defendant appears in court or files a
415
pleading expressly agreeing to t h e p l a i n t i f f s d e m a n d , it

h a s been held t h a t t h e r e is no law in this jurisdiction which
recognizes a j u d g m e n t note, t h a t is, a promissory note
w h e r e i n t h e m a k e r a u t h o r i z e s in advance, on w a r r a n t of
a t t o r n e y , a confession of j u d g m e n t a g a i n s t h i m in t h e
e v e n t of n o n - p a y m e n t of t h e note on its m a t u r i t y . This is
considered void as being c o n t r a r y to public policy, since
t h e p r o m i s s o r b a r g a i n s away his day in court a n d this
m i g h t be a s o u r c e of a b u s e a n d o p p r e s s i o n (PNB vs.
Manila Oil Refining, etc. & Co., 43 Phil. 444).
9. A j u d g m e n t nunc pro tunc (literally, "now for

then") is r e n d e r e d to e n t e r or record such j u d g m e n t as
h a d b e e n formerly r e n d e r e d b u t h a s not been e n t e r e d a s
t h u s r e n d e r e d . I t s only function is to record some act of
t h e court which w a s done at a former time, b u t which was
not t h e n recorded, in order to m a k e t h e record s p e a k t h e
t r u t h , w i t h o u t any c h a n g e s in s u b s t a n c e or in any m a t e r i a l
r e s p e c t (Lichauco vs. Tan Pho, 51 Phil. 862; Henderson
vs. Tan, 87 Phil. 466).
10. The object of a j u d g m e n t nunc pro tunc is not

t h e r e n d i t i o n of a new j u d g m e n t a n d t h e a s c e r t a i n m e n t
a n d d e t e r m i n a t i o n of new r i g h t s , b u t is one placing in
p r o p e r form o n t h e record t h e j u d g m e n t t h a t h a s been
previously rendered, to make it speak the t r u t h and
t h e r e b y show w h a t t h e judicial action really w a s . It may
not be availed of to correct judicial errors, such as to r e n d e r
a j u d g m e n t which t h e court o u g h t to h a v e r e n d e r e d in
place of t h e one it did erroneously r e n d e r or to supply non-
action by t h e court however e r r o n e o u s t h e j u d g m e n t may
have b e e n (Manning International Corp., et al. vs. NLRC,
et al., G.R. No. 83018, Mar. 13, 1991).
1 1 . It is t h e filing of t h e signed decision w i t h the

clerk of court, a n d not its p r o n o u n c e m e n t in open court,
t h a t c o n s t i t u t e s r e n d i t i o n of j u d g m e n t (Ago vs. CA, et al.,
L-17898, Oct. 31, 1962; Balquidra vs. CFI of Capiz,
L-40490, Oct. 28, 1977; Castro vs. Malazo, A.M. No. 1237-
416
RULE 36 JUDGMENTS, FINAL ORDERS SEC 1
AND ENTRY THEREOF
CAR, Aug. 21, 1980). If the decision is sent by the judge

by registered mail, it is considered filed in court as of the
date of its receipt by t h e clerk, and not the date of its
posting or mailing (see Sec. 51, R.A. 296, as amended by
R.A. 1186 and R.A. 1404).
12. A j u d g m e n t m u s t conform to the pleadings and

the theory of the action under which the case was tried.
A j u d g m e n t going outside the issues and purporting to
adjudicate something on which the parties were not heard
is invalid (Lazo, et al. vs. Republic Surety & Insurance
Co., Inc., L-27365, Jan. 30, 1970).
13. A decision of the Court of First Instance with

absolutely nothing to support it is a nullity and open to
direct attack (Air France vs. Carrascoso, et al., L-21488,
Sept. 28, 1966).
14. A j u d g m e n t contrary to the express provisions

of law is erroneous but it is not void. Once it becomes
final and executory, it is as binding and effective as any
j u d g m e n t and, though erroneous, will be enforced as a
valid j u d g m e n t in accordance with its dispositions
(Mercado, et al. vs. CA, et al., L-44001, June 10, 1988).
15. The validity of a judgment or order of a court

cannot be collaterally attacked except on the ground of
(a) lack of jurisdiction, or (b) i r r e g u l a r i t y of its e n t r y
a p p a r e n t from t h e face of the record. If the supposed
nullity is based on the party's alleged lack of consent to
the compromise agreement, the remedy is to move for its
reconsideration and to appeal from the the judgment if
the motion is denied; or if the judgment is already final
and executory, to file a petition for relief under Rule 38
(Cadano vs. Cadano, L-34998, Jan. 11, 1973).
16. Where the judgment is ambiguous and difficult
to comply w i t h , t h e r e m e d y is to file a motion for a
so-called "clarificatory" j u d g m e n t (Almendras vs. Del
Rosario, L-20158, Oct. 14, 1968). The court may correct
417
a clerical e r r o r or clarify an ambiguity in t h e j u d g m e n t

even after its finality (Presbitero vs. CA, et al., L-34241,
May 28, 1984; Rebuldela, et al. vs. IAC, et al., G.R.
No. 70856, Nov. 11, 1987). For said purpose, t h e court
may resort to the pleadings filed by the parties, the findings
of fact a n d t h e conclusions of law expressed in t h e text or
body of t h e decision (Republic Surety & Insurance Co.,
Inc. vs. IAC, et al., G.R. Nos. 71131-32, July 27, 1987).
17. T h e r e i s a d i f f e r e n c e b e t w e e n a n a m e n d e d
j u d g m e n t a n d a s u p p l e m e n t a l j u d g m e n t . In an amended
and clarified j u d g m e n t , t h e court m a k e s a t h o r o u g h study
of t h e original j u d g m e n t a n d r e n d e r s t h e a m e n d e d and
clarified j u d g m e n t only after considering all the factual
a n d legal issues. Such a m e n d e d a n d clarified decision is
an e n t i r e l y new decision which s u p e r s e d e s t h e original
decision. A s u p p l e m e n t a l decision does not t a k e t h e place
of or e x t i n g u i s h t h e original; it only serves to bolster or
add s o m e t h i n g to t h e p r i m a r y decision (Esquivel, et al.
vs. Alegre, etc., et al., G.R. No. 79425, April 17, 1989).
18. F i n a l orders should s t a t e t h e facts on which they

a r e b a s e d (Yuson de Pua vs. San Agustin, L-27402,
July 25, 1981). While t h e Rules do not specifically require
findings of fact a n d t h e law on which an order of dismissal
is based, for t h e satisfaction of t h e losing p a r t y and to
a s s i s t t h e a p p e l l a t e court in t h e resolution of an a p p e a l
therefrom, a t r i a l court should reason out its order instead
of merely incorporating, by reference, t h e c o n t e n t s of the
motion to dismiss (Mascunana vs. Prov. Bd. of Neg. Occ,
L-27013, Oct. 15, 1977). M i n u t e o r d e r s , or those merely
s t a t i n g t h a t the trial court had resolved to grant the
motion to dismiss, should be avoided. I n s t e a d , t h e t r i a l
court should specify t h e r e a s o n s i o r t h e dismissal so t h a t
t h e a p p e l l a t e court can readily d e t e r m i n e w h e t h e r t h e r e
is prima facie j u s t i f i c a t i o n for t h e o r d e r of d i s m i s s a l
(Continental Bank vs. Tiangco, G.R. No. 50480, Dec. 14,
1979). In issuing a final a n d appealable order, t h e trial
418
RULE 36 JUDGMENTS, FINAL ORDERS SEC 1
AND ENTRY THEREOF
court should state clearly the reasons for its issuance, with
specific r e f e r e n c e s to t h e facts a n d law relied upon,
necessary for the full u n d e r s t a n d i n g thereof; otherwise,
t h e a p p e l l a t e c o u r t w o u l d b e a t a loss o r a t l e a s t
unnecessarily inconvenienced in ascertaining the definite
basis of t h e order (Amunategue vs. CA, et at., L-30340,
June 30, 1979).
19. E v e r y c o u r t h a v i n g j u r i s d i c t i o n to r e n d e r a
particular j u d g m e n t has inherent power and authority to
enforce it a n d to exercise equitable control over such
enforcement. The court has authority to inquire w h e t h e r
i t s j u d g m e n t h a s b e e n e x e c u t e d , a n d will r e m o v e
obstructions to t h e enforcement thereof. Such authority
extends not only to such orders and such writs as may be
necessary to carry out the judgment into effect and render
it binding and operative, but also to such orders as may
be necessary to prevent an improper enforcement of the
judgment. If a j u d g m e n t is sought to be perverted and
made t h e medium of consummating a wrong, the court on
proper application can prevent it [31 Am. JUT., Judgments,
Sec. 882, pp. 363 364] (Cabrias vs. Adil, L-49648,
Mar. 18, 1985).
20. The r e q u i r e m e n t in Sec. 1 of this Rule t h a t a

decision should state the facts and law on which it is based
(see Sec. 9, Art. X, 1973 Constitution) formerly applied
only to decisions of courts of record, and not those of
inferior courts, p u r s u a n t to Sec. 12, Art. VII of the 1935
Constitution. Thus, formerly, decisions of an inferior court
were not required to contain findings of fact and law (then
Sec. 14, Rule 5), unless it sits as a court of record in a
criminal case appealable to the Court of Appeals or the
Supreme Court (Sec. 87, R.A. 296, as amended).
However, under R.A. 6031, inferior courts became courts
of record a n d t h e facts and law m u s t a p p e a r in t h e i r
decisions. Also, Rule 5 has been expressly repealed and
the procedure in inferior courts is now the same as t h a t in
419
the Regional Trial Courts.

Nevertheless, it h a s repeatedly been held t h a t said
r e q u i r e m e n t , set out in t h e foregoing constitutional and
s t a t u t o r y provisions, refers only to decisions on t h e merits
and not to o r d e r s resolving incidental m a t t e r s (Mendoza
vs. CFI of Quezon, et al, L-35612 14, June 27, 1973, citing
Soncuya vs. National Investment Board, 69 Phil. 602
a n d Bacolod Murcia Milling Co., Inc. vs. Henares, 107
Phil. 560).
2 1 . The S u p r e m e Court is not compelled to adopt a
definite a n d s t r i n g e n t rule on how its j u d g m e n t shall be
framed. It h a s t h e discretion to decide w h e t h e r a "minute
resolution" should be used in lieu of a full-blown decision
in any p a r t i c u l a r case a n d t h a t a m i n u t e resolution of
dismissal of a petition for review on c e r t i o r a r i c o n s t i t u t e s
an adjudication on t h e merits of t h e controversy or subject-
m a t t e r of t h e petition. Since t h e g r a n t of a petition for
review on c e r t i o r a r i is not a m a t t e r of r i g h t b u t of sound
judicial discretion, t h e r e is accordingly no need to fully
explain t h e C o u r t ' s denial. Such a m i n u t e resolution can
only m e a n t h a t t h e S u p r e m e Court a g r e e s w i t h o r adopts
t h e findings a n d conclusions of t h e lower court, t h a t is,
t h a t t h e l a t t e r ' s decision s o u g h t to be reviewed a n d set
aside is correct (Smith, Bell & Co. [Phil.], Inc., et al. vs,
CA, et al, G.R. No. 56294, May 20, 1991).
2 2 . Sec. 40, B.P. Blg. 129 h a s a u t h o r i z e d memo-

r a n d u m decisions, a species of succinctly w r i t t e n decisions
b y a p p e l l a t e c o u r t s for e x p e d i e n c y , p r a c t i c a l i t y a n d
c o n v e n i e n c e in c o n s i d e r a t i o n of t h e d o c k e t s t a t u s of
our c o u r t s . It h a s been held t h a t such decisions comply
w i t h t h e c o n s t i t u t i o n a l m a n d a t e (Oil and Natural Gas
Commission vs. CA, et al, G.R. No. 114323, Sept. 28, 1999).
H o w e v e r , to be valid, s u c h m e m o r a n d u m decision
s h o u l d a c t u a l l y embody t h e factual findings a n d legal
conclusions in an a n n e x a t t a c h e d to a n d m a d e an integral
p a r t of t h e d e c i s i o n . Also, s u c h d e c i s i o n s s h o u l d be
420
AND ENTRY THEREOF
sparingly used and may be resorted to only in cases where

the facts are accepted in the main by the parties, are easily
determinable by the judge and do not involve doctrinal
complications requiring extended discussion. It may be
employed in simple cases where the appeal is obviously
groundless and deserves no more t h a n the time to dismiss
it (Yao vs. CA, et al., G.R. No. 132428, Oct. 24, 2000 and
cases t h e r e i n cited,).
2 3 . A j u d g m e n t for support does not become final

because the allowance for the right of support is essentially
provisional (Advincula vs. Advincula, L-19065, Jan. 31,
1964).
24. A judgment in a naturalization case becomes final

only after the issuance of the naturalization certificate
and compliance by the applicant with R.A. 530 (Ao San
vs. Republic, L-21128, Aug. 19, 1967), but unlike other
decisions, it does not really become executory a n d a
certificate of naturalization may be cancelled on grounds
s u b s e q u e n t to t h e g r a n t i n g thereof (Republic vs. Guy,
L 41399, July 20, 1982).
25. A judge permanently transferred to another court
of equal jurisdiction can render a decision on a case in his
former court which was totally heard by him and submitted
for decision, with the parties having argued the case (Valentin
vs. Sta. Maria, et al., L-30158, Jan. 17,1974). This decision
a b a n d o n s t h e doctrine in People vs. Soria (L-25175,
Mar. 1, 1968) and reiterates the ruling in People vs. Donesa
(L-24162, J a n . 31, 1973). The present doctrine applies to
both civil and criminal cases.
Sec. 2. Entry of judgments and final orders. — If

no a p p e a l or m o t i o n for n e w trial or r e c o n s i d e r a t i o n
i s filed w i t h i n t h e t i m e p r o v i d e d i n t h e s e R u l e s , t h e
j u d g m e n t or final o r d e r s h a l l f o r t h w i t h be e n t e r e d
by t h e clerk in t h e book of e n t r i e s of j u d g m e n t s . The
d a t e of finality of t h e j u d g m e n t or final o r d e r s h a l l
421
be d e e m e d to be the date of its entry. The record

shall contain the dispositive part of the judgment
or final order a n d shall be s i g n e d by t h e clerk, with
a c e r t i f i c a t e t h a t s u c h j u d g m e n t o r final o r d e r h a s
b e c o m e final a n d e x e c u t o r y . ( 2 a , 10, R51)
NOTES
1. The a m e n d m e n t s u n d e r t h i s section, to t h e effect

t h a t t h e d a t e of finality of t h e j u d g m e n t or final order
shall be d e e m e d to be t h e d a t e of its e n t r y , c h a n g e s t h e
former rule a n d a b a n d o n s t h e j u r i s p r u d e n c e on w h a t was
t h e n considered t h e d a t e of e n t r y of j u d g m e n t s and final
orders.
T h e f o r m e r d o c t r i n e w a s t h a t t h e e n t r y i s not
s y n o n y m o u s or necessarily s i m u l t a n e o u s w i t h t h e finality
of t h e j u d g m e n t or final order. It w a s u n d e r s t o o d t h e n
t h a t t h e finality of a j u d g m e n t or final order, for p u r p o s e s
of a p p e a l or execution, took place by o p e r a t i o n of law by
t h e lapse of t h e r e g l e m e n t a r y 15- or 30- day period, b u t
t h e e n t r y thereof m a y t a k e place t h e r e a f t e r as it is the
physical act of actually recording t h e dispositive portion
of t h e j u d g m e n t or final o r d e r in t h e book of e n t r i e s of
judgments.
T h u s , it w a s r e p e a t e d l y held t h a t t h e finality of t h e
j u d g m e n t w a s entirely distinct from its e n t r y a n d t h e delay
in t h e l a t t e r does not affect t h e effectivity of t h e former
which is counted from t h e expiration of t h e period to appeal
(Munez, et al. us. CA, et al., L-46040, July 23, 1987, and
cases cited therein,).
This a m e n d m e n t in Sec. 2 m a k e s finality a n d e n t r y
s i m u l t a n e o u s b y o p e r a t i o n o f law a n d e l i m i n a t e s t h e
confusion a n d g u e s s w o r k w h e n e v e r t h e p a r t i e s could not
h a v e access, for one r e a s o n or a n o t h e r , to t h e book of
e n t r i e s of j u d g m e n t s . It also avoids t h e u s u a l problem
w h e r e t h e physical act of w r i t i n g out t h e e n t r y is delayed
by neglect or sloth.
422
RULE 36 JUDGMENTS, FINAL ORDERS S E C S . 3-5
AND ENTRY THEREOF
2. E n t r y of t h e j u d g m e n t or final order assumes

i m p o r t a n c e in r e c k o n i n g some r e g l e m e n t a r y periods,
such as the 5-year period for execution by motion (Sec. 6,
Rule 39) or the 6-month period for a petition for relief
(Sec. 3, Rule 38). For this reason and to serve as official
records, Rule 136 requires t h a t the clerk of court shall
keep a j u d g m e n t book containing a copy of each judgment
rendered by the court in the order of its date, and a book
of e n t r i e s of j u d g m e n t s c o n t a i n i n g at length in
chronological order entries of all final judgments or orders
of the court (Sec. 9).
S e c . 3. Judgment for or against one or more of

several parties. — J u d g m e n t m a y be g i v e n for or
a g a i n s t o n e o r m o r e o f s e v e r a l p l a i n t i f f s , a n d for o r
against one or more of several defendants. When
justice so demands, the court may require the
p a r t i e s o n e a c h s i d e t o file a d v e r s a r y p l e a d i n g s a s
between themselves and determine their ultimate
r i g h t s a n d o b l i g a t i o n s . (3)
S e c . 4. Several judgments. — In an a c t i o n
against several defendants, the court may, when a
several judgment is proper, render judgment
against one or more of them, leaving the action to
p r o c e e d a g a i n s t t h e o t h e r s . (4)
S e c . 5. Separate judgments. — W h e n m o r e t h a n
o n e c l a i m for r e l i e f i s p r e s e n t e d i n a n a c t i o n , t h e
court, at any stage, u p o n a d e t e r m i n a t i o n of the
issues m a t e r i a l to a p a r t i c u l a r claim a n d all
counterclaims arising out of the transaction or
o c c u r r e n c e which is t h e subject m a t t e r of the claim,
may r e n d e r a separate j u d g m e n t disposing of such
claim. The j u d g m e n t shall terminate the action
with respect to the claim so disposed of and the
action shall proceed as to the remaining claims. In
423
case a separate j u d g m e n t is rendered, the court by

order m a y stay its enforcement until the rendition
of a subsequent j u d g m e n t or j u d g m e n t s and may
prescribe such conditions as may be necessary to
secure the benefit thereof to the party in whose
favor t h e j u d g m e n t is rendered. (5a)
S e c . 6. Judgment against entity without juridical

personality. — W h e n j u d g m e n t is r e n d e r e d a g a i n s t
two or more persons sued as an entity without
juridical personality, the judgment shall set out
t h e i r i n d i v i d u a l o r p r o p e r n a m e s , i f k n o w n . (6a)
NOTES
1. Sec. 4 gives t h e m e a n i n g of a several j u d g m e n t

a n d Sec. 5, a s e p a r a t e j u d g m e n t . A s e v e r a l j u d g m e n t is
proper w h e r e t h e liability of each p a r t y is clearly separable
and distinct from t h a t of his co-parties such t h a t t h e claims
a g a i n s t e a c h o f t h e m could h a v e b e e n t h e s u b j e c t o f
s e p a r a t e s u i t s , a n d j u d g m e n t for or a g a i n s t one of t h e m
will not necessarily affect t h e o t h e r s . In actions a g a i n s t
solidary debtors, a s e v e r a l j u d g m e n t is not proper. T h u s ,
u n d e r Sec. 3(c), Rule 9, w h e r e t h e r e is a common cause of
action a g a i n s t s e v e r a l d e f e n d a n t s a n d some a r e in default,
t h e case shall be tried on t h e basis of t h e a n s w e r of t h e
non-defaulting d e f e n d a n t s as a s e v e r a l j u d g m e n t is not
proper, t h e r e being a common cause of action a g a i n s t all.
2. R e g a r d i n g Sec. 6, see t h e provisions of Sec. 15,

Rule 3 a n d t h e notes t h e r e u n d e r .
3. A d e c i s i o n t h a t h a s a c q u i r e d finality becomes
i m m u t a b l e a n d u n a l t e r a b l e . A final j u d g m e n t may no
longer be modified in any respect, even if t h e modification
is m e a n t to correct e r r o n e o u s conclusions of fact a n d law;
a n d w h e t h e r it be m a d e by t h e court t h a t r e n d e r e d it or
by t h e h i g h e s t court of t h e land (Collantes vs. CA, et al.,
G.R. No. 169604, Mar. 6, 2007).
424
AND ENTRY THEREOF
The only exceptions to t h e rule t h a t final j u d g m e n t s

may no longer be modified in any r e s p e c t a r e (1) t h e
correction of clerical errors, (2) t h e so-called nunc pro tunc
e n t r i e s which cause no prejudice to any p a r t y , (3) void
j u d g m e n t s , a n d (4) w h e n e v e r c i r c u m s t a n c e s t r a n s p i r e
after t h e finality of t h e decision m a k i n g its execution
unjust and inequitable (Ramos vs. Ramos, G.R. No 144294,
Mar. 11, 2003; Sacdalan vs. CA, et al., 128967, May 20,
2004; Peha vs. GSIS, G.R. No. 159520, Sept. 19, 2006).
425
RULE 37
N E W TRIAL OR R E C O N S I D E R A T I O N
S e c t i o n 1. Grounds of and period for filing motion for

new trial or reconsideration. — W i t h i n t h e p e r i o d
for t a k i n g a n a p p e a l , t h e a g g r i e v e d p a r t y m a y
move the trial court to set aside the judgment or
final o r d e r a n d g r a n t a n e w t r i a l for o n e o r m o r e
of the following causes materially affecting the
substantial rights of said party:
(a) F r a u d , a c c i d e n t , m i s t a k e o r e x c u s a b l e
negligence w h i c h ordinary prudence could not
have guarded against and by reason of which such
aggrieved party has probably been impaired in his
rights; or
(b) N e w l y d i s c o v e r e d e v i d e n c e , w h i c h h e c o u l d
not, with reasonable diligence, h a v e discovered and
p r o d u c e d at the trial, and w h i c h if p r e s e n t e d would
probably alter the result.
Within the same period, the aggrieved party
m a y a l s o m o v e for r e c o n s i d e r a t i o n u p o n t h e
grounds that the damages awarded are excessive,
that the evidence is insufficient to justify the
d e c i s i o n o r f i n a l o r d e r , o r t h a t t h e d e c i s i o n o r final
order is contrary to law. (la)
NOTES
1. The word "perfecting" in t h e first clause of t h e

former Sec. 1 h a s b e e n correctly c h a n g e d to " t a k i n g . "
U n d e r t h e p r e s e n t p r o c e d u r e , an a p p e a l is taken by filing
a notice of appeal, a n d t h e a p p e a l is perfected upon the
e x p i r a t i o n of t h e l a s t day to a p p e a l by a n y p a r t y . In
cases w h e r e a record on a p p e a l is required, a p p e a l is taken
by filing t h e notice of a p p e a l a n d t h e record on appeal,
426
RULE 37 NEW TRIAL OR RECONSIDERATION SEC. 1
and t h e a p p e a l is perfected upon t h e approval of t h e record

on a p p e a l (Destileria Lim Tuaco & Co., Inc. vs. CA, et al.,
G.R. No. 63053, July 22, 1986).
This section h a s been further reformulated w i t h a
second p a r a g r a p h s e p a r a t e l y t r e a t i n g o n m o t i o n s for
reconsideration which a r e similarly b u t not completely
governed by t h e s a m e rules on motions for new trial.
2. A motion for new t r i a l should be filed within the
period for appeal, t h a t is, within 15 or 30 days from notice
of t h e j u d g m e n t . It s u s p e n d s t h e r u n n i n g of the period to
appeal, b u t does not e x t e n d t h e time w i t h i n which an
appeal, m u s t be perfected (taken), hence, if denied, t h e
movant h a s only t h e balance of t h e r e g l e m e n t a r y period
within which to perfect (take) his appeal (Ramirez de la
Cavada, et al. vs. Butte, 100 Phil. 635).
3. However, if a motion for new trial does not satisfy

the r e q u i r e m e n t s of this Rule, it is pro forma and does not
suspend t h e period to appeal (Sec. 2; Francisco vs. Caluag,
L-15365, Dec. 26, 1961). A m o t i o n for n e w t r i a l is
considered pro forma w h e r e :
(a) It is based on t h e same ground as t h a t raised in a
preceding motion for new t r i a l or reconsideration which
h a s a l r e a d y b e e n denied (Samudio, et al. vs. Mun. of
Gainza, Camarines Sur, 100 Phil. 1013);
(b) It contains the same a r g u m e n t s and m a n n e r of
discussion a p p e a r i n g in t h e prior opposition to the motion
to dismiss and which motion was granted (Cruz vs. Tuazon
& Co., Inc., et al, L-23749, April 7, 1977);
(c) The new ground alleged in the second motion for
new t r i a l already existed, was available and could have
been alleged in t h e first motion for new trial which was
denied (Mallare, et al. vs. Panahon, et al, 98 Phil. 154;
Balquidra vs. CFI, et al, L-40490, Oct. 28, 1977);
(d) It is b a s e d on t h e g r o u n d of insufficiency of
evidence or t h a t t h e j u d g m e n t is c o n t r a r y to law b u t
427
does not specify t h e supposed defects in t h e j u d g m e n t

(Sec. 2; Villalon, et al. vs. Ysip, et al., 98 Phil. 851;
Crisostomo, et al. vs. CA, et al., L-27166, Mar. 25, 1970;
Villarica, et al. vs. CA, et al., L-28363, May 15, 1974; City
of Cebu vs. Mendoza, et al, L-26321, Feb. 25, 1975;
Nieto vs. De los Angeles, L-35514, Nov. 13, 1981); a n d
(e) It is b a s e d on t h e g r o u n d of f r a u d , a c c i d e n t ,
m i s t a k e or excusable negligence b u t does not specify the
facts constituting these grounds and/or is not accompanied
by an affidavit of m e r i t s (Sec. 2 of t h i s Rule). Note t h a t
fraud a n d m i s t a k e m u s t b e alleged w i t h p a r t i c u l a r i t y
(Sec. 5, Rule 8).
F u r t h e r m o r e , s a i d m o t i o n m u s t comply w i t h t h e
provisions of Rule 15, o t h e r w i s e it will not be accepted for
filing a n d / o r will not s u s p e n d t h e r u n n i n g of t h e
r e g l e m e n t a r y period. See notes a n d cases u n d e r Sec. 6,
Rule 15.
It should also be observed t h a t heretofore, u n d e r Sec.
4 of t h e I n t e r i m Rules, no p a r t y shall be allowed to file a
s e c o n d m o t i o n for reconsideration of a final o r d e r or
j u d g m e n t of t h e t r i a l c o u r t s . However, a second motion
for new trial w o u l d s t i l l b e a v a i l a b l e u n d e r t h e
c i r c u m s t a n c e s set out in Sec. 5 of t h i s Rule. This section
h a s now expressly a d o p t e d t h e foregoing prohibition in
t h e I n t e r i m R u l e s w i t h r e s p e c t t o second m o t i o n s for
reconsideration.
4. It h a s been held, however, t h a t even if t h e motion

for r e c o n s i d e r a t i o n is b a s e d on s u b s t a n t i a l l y t h e s a m e
g r o u n d s as m o v a n t ' s memorandum w h e n t h e case was
s u b m i t t e d for decision, it is not p r o forma if it specifically
p o i n t s o u t t h e c o n c l u s i o n s allegedly not s u p p o r t e d b y
t h e evidence (Maturan vs. Araula, et al, G.R. No. 57392,
Jan. 30, 1982), a s i d e from s t a t i n g a d d i t i o n a l specific
r e a s o n s for said g r o u n d s (Vina vs. CA, et al, L-39498,
Dec. 23, 1983).
428
RULE 37 N E W TRIAL OR RECONSIDERATION SEC. 1
Also, while a motion for new trial based on fraud and

so forth is pro forma if unaccompanied by an affidavit of
merits, w h e r e said motion also invokes t h e further ground
t h a t its decision a w a r d s excessive damages, with a
certification of t h e court's findings and conclusions, said
motion is not pro forma as t h e l a t t e r ground does not
require affidavits of merits (PCIB vs. Ortiz, et al., L-49223,
May 29, 1987).
5. F u r t h e r m o r e , t h e concept oipro forma motions for

r e c o n s i d e r a t i o n is p r o p e r l y d i r e c t e d a g a i n s t a final
j u d g m e n t or order, and not those against an interlocutory
order. In t h e former, a repetition of t h e ground already
disposed of may be categorized as merely for purposes of
delay, hence s u c h motion is pro forma; b u t s u c h r u l e
does not apply to motions directed against interlocutory
orders (BA Finance Corp. vs. Pineda, et al., G.R.
No. 61628, Dec. 29, 1982). See also Note 11 u n d e r Sec. 1,
Rule 65.
6. On t h e pro forma doctrine, it is worth recalling

w h a t t h e S u p r e m e C o u r t r e i t e r a t e d in Dacanay vs.
Alvendia, et al. (L-22633, Oct. 3 1 , 1969) t h a t w h e r e a
motion for reconsideration is b u t a reiteration of reasons
a n d a r g u m e n t s p r e v i o u s l y s e t forth i n t h e m o v a n t ' s
memorandum and which the trial court had already
considered, w e i g h e d a n d resolved a d v e r s e l y before it
rendered its decision now sought to be considered, t h a t
motion is pro forma.
The said case law rests upon the principle t h a t such a
motion has no other purpose t h a n to gain time by delaying
or impeding t h e progress of the action. This is the logical
deduction t h a t can be d r a w n from a motion which merely
r e i t e r a t e s and repleads, and adds nothing more to, the
a r g u m e n t s which had previously been submitted to the
same court and which a r g u m e n t s it had duly considered
and resolved.
429
But, as pointed out in Guerra Enterprises Co., Inc.

vs. CFI ofLanao del Sur (L-28310, April 17, 1970), the
mere fact t h a t a motion for reconsideration deals with the
same issues and a r g u m e n t s already posed to and resolved
by the trial court in its decision does not necessarily mean
t h a t the same is pro forma. A pleader p r e p a r i n g a motion
for r e c o n s i d e r a t i o n m u s t o f n e c e s s i t y a d d r e s s t h e
a r g u m e n t s accepted by the court in its decision. In doing
so, he h a s to dwell upon t h e same issues passed upon by
the court and, if in his motion he may not discuss those
issues, t h e consequence would be t h a t after a decision is
r e n d e r e d t h e n t h e losing p a r t y would be confined to filing
only motions for reopening and new trial.
Where the circumstances of a case do not show an
i n t e n t on t h e p a r t of t h e p l e a d e r to m e r e l y delay the
proceedings, and his motion reveals a bona fide effort to
p r e s e n t additional m a t t e r s or to r e i t e r a t e his a r g u m e n t s
in a different light, the courts should be slow to declare
the same o u t r i g h t as pro forma. The doctrine relating to
pro forma motions has a direct bearing upon t h e movant's
valuable right to appeal. It would be in t h e i n t e r e s t of
justice to accord t h e appellate court t h e opportunity to
review t h e decision of t h e t r i a l court on t h e m e r i t s t h a n to
abort t h e a p p e a l by declaring t h e motion pro forma, such
t h a t t h e period to a p p e a l was not i n t e r r u p t e d and had
consequently lapsed.
7. A motion for reconsideration, if based on the same

grounds as t h a t for a new trial, is considered a motion for
new t r i a l and h a s t h e same effect (Rodriguez vs. Rovira,
63 Phil. 476). However, where t h e motion for new trial is
based on t h e last p a r a g r a p h of Sec. 1, it is properly a
motion for reconsideration as t h e movant merely asks the
c o u r t to r e e v a l u a t e its decision w i t h o u t a t r i a l being
conducted again on t h e issues involved (City of Cebu, et
al. vs. Mendoza, et al., supra).
430
RULE 37 NEW TRIAL OR RECONSIDERATION SEC. 1
8. F r a u d , as a ground for new trial, m u s t be extrinsic

or collateral, t h a t is, it is the kind of fraud which prevented
the aggrieved p a r t y from having a trial or p r e s e n t i n g his
case to t h e court, or was used to procure the j u d g m e n t
without fair submission of t h e controversy. I n s t a n c e s of
collateral fraud are acts intended to keep the unsuccessful
p a r t y a w a y from t h e c o u r t by a false p r o m i s e of
compromise, or purposely keeps him in ignorance of t h e
suit, or where the attorney fraudulently p r e t e n d s to
r e p r e s e n t a p a r t y and connives at his defeat, or corruptly
sells out his client's i n t e r e s t (Magno vs. CA, et al, L-
28486, Sept. 10, 1981). It is to be d i s t i n g u i s h e d from
intrinsic fraud which refers to t h e acts of a p a r t y at t h e
t r i a l which p r e v e n t e d a fair a n d j u s t d e t e r m i n a t i o n of
the case (Palanca vs. American Food Mfg. Co., L-22822,
Aug. 30, 1968) and which could have been litigated and
determined at t h e t r i a l or adjudication of the case, such
as falsification, false testimony and so forth, and does not
constitute a ground for new t r i a l (Tarca vs. Carretero, 99
Phil. 419; Conde vs. IAC, et al, G.R. No. 70443, Sept. 15,
1986).
9. Mistake generally refers to mistakes of fact but

may also include m i s t a k e s of law where, in good faith, the
defendant was misled in t h e case. Thus, a mistake as to
the scope and e x t e n t of the coverage of an ordinance (City
of Iloilo vs. Pinzon, 97 Phil. 968 [Unrep.J), or a mistake
as to t h e effect of a compromise a g r e e m e n t upon the need
for answering a complaint (Salazar vs. Salazar, 8 Phil.
183), although actually constituting mistakes of law, have
been considered sufficient to w a r r a n t a new trial.
As a general rule, a client is bound by the m i s t a k e s of
his counsel (Que vs. CA, et al, G.R. No. 54169, Nov. 10,
1980). Only w h e n t h e application of t h i s g e n e r a l rule
would result in serious injustice should an exception thereto
be a p p l i e d (Villa Rhecar Bus vs. De la Cruz, et al,
G.R. No. 78936, Jan. 7, 1988).
431
10. Negligence m u s t be e x c u s a b l e a n d g e n e r a l l y
imputable to t h e p a r t y b u t t h e negligence of counsel is
binding on t h e client j u s t as t h e l a t t e r is bound by the
mistakes of his lawyer (Gaba vs. Castro, G.R. No. 56171,
Jan. 31, 1983; Ayllon vs. Sevilla, et al., G.R. No. 79244,
Dec. 10, 1987). However, negligence of t h e counsel may
also be a ground for new trial if it was so g r e a t such t h a t
t h e p a r t y w a s p r e j u d i c e d a n d p r e v e n t e d from fairly
p r e s e n t i n g his case (People vs. Manzanilla, 43 Phil. 167;
cf. Republic vs. Arro, et al., L-48241, June 11, 1987).
1 1 . Newly discovered evidence, to w a r r a n t a new
trial, (a) m u s t have been discovered after trial, (b) could
not have been discovered and produced at the trial despite
reasonable diligence, and (c) if presented, would probably
a l t e r t h e result of t h e action (National Shipyards and
Steel Corp. vs. Asuncion, et al., 103 Phil. 67). Mere initial
hostility of a witness at the trial does not constitute his
testimony into newly discovered evidence (Arce vs. Arce,
106 Phil. 630).
12. Generally, a client will suffer t h e consequences

of the negligence, mistake or lack of competence of counsel;
however, in t h e i n t e r e s t of justice and equity, exceptions
may be made in instances where the p a r t y may be unjustly
deprived of his property. Thus, t h e court will not disregard
the verified defense in t h e a n s w e r t h a t t h e t r a n s a c t i o n
between t h e p a r t i e s was really an equitable mortgage and
not a pacto de retro sale, especially where t h e r e is evidence
to s u p p o r t such defense (Escudero, et al. vs. Dulay, et al.,
G.R. No. 60578, Feb. 23, 1988; see also Amil vs. CA, et al.,
G.R. No. 125272, Oct. 7, 1999).
13. A motion for reopening the trial, unlike a motion

for new trial, is not specifically mentioned in t h e Rules
b u t is nevertheless a recognized procedural recourse or
d e v i c e d e r i v i n g v a l i d i t y a n d a c c e p t a n c e from long
established usage. It differs from a motion for new trial,
432
which is proper only after promulgation of judgment, since

a motion to reopen may properly be p r e s e n t e d only after
either or both p a r t i e s have formally offered and closed
their evidence before j u d g m e n t . F u r t h e r m o r e , a motion
for new t r i a l is based upon specific grounds set forth in
Sec. 1, Rule 37 for civil cases, and in Sec. 2, Rule 121 for
c r i m i n a l c a s e s ; w h e r e a s t h e r e o p e n i n g of a c a s e is
controlled by no o t h e r rule t h a n t h e p a r a m o u n t i n t e r e s t
of justice, resting entirely on the sound discretion of a trial
court, t h e exercise of which discretion will not be reviewed
on appeal unless a clear abuse thereof is shown (Alegre
vs. Reyes, etc., et al., G.R. No. 56923, May 9, 1988; Agulto
S e c . 2. Contents of motion for new trial or

reconsideration and notice thereof. — T h e m o t i o n s h a l l
be made in writing stating the ground or grounds
therefor, a written notice of w h i c h shall be served
by the m o v a n t on the adverse party.
A m o t i o n for n e w t r i a l s h a l l be p r o v e d in t h e
m a n n e r p r o v i d e d for p r o o f o f m o t i o n s . A m o t i o n
for t h e c a u s e m e n t i o n e d i n p a r a g r a p h (a) o f t h e
preceding section shall be supported by affidavits
of merits which may be rebutted by affidavits.
A m o t i o n for t h e c a u s e m e n t i o n e d i n p a r a g r a p h
(b) s h a l l b e s u p p o r t e d b y a f f i d a v i t s o f t h e w i t n e s s e s
by w h o m such evidence is expected to be given, or
by duly a u t h e n t i c a t e d d o c u m e n t s w h i c h are
proposed to be introduced in evidence.
A m o t i o n for r e c o n s i d e r a t i o n s h a l l p o i n t o u t
specifically the findings or conclusions of the
j u d g m e n t o r final o r d e r w h i c h are n o t s u p p o r t e d
by the e v i d e n c e or w h i c h are contrary to law,
making express reference to the testimonial or
d o c u m e n t a r y e v i d e n c e o r t o t h e p r o v i s i o n s o f law
alleged to be contrary to such findings or
conclusions.
433
A pro forma m o t i o n for n e w t r i a l or r e c o n -

s i d e r a t i o n s h a l l n o t toll t h e r e g l e m e n t a r y p e r i o d o f
a p p e a l . (2a)
NOTES
1. An affidavit of merits is one which s t a t e s (a) the

n a t u r e or c h a r a c t e r of t h e fraud, accident, m i s t a k e or
excusable negligence on which t h e motion for new t r i a l is
based, (b) t h e facts constituting t h e movant's good and
s u b s t a n t i a l defenses or valid causes of action (Ferrer vs.
Sepeng, L-39373, Sept. 30, 1974), a n d (c) t h e evidence
w h i c h he i n t e n d s to p r e s e n t if h i s m o t i o n is g r a n t e d
(Miranda vs. Legaspi, et al., 92 Phil. 290). An affidavit
of m e r i t s should s t a t e facts a n d not m e r e opinions or
conclusions of law (Malipol, et al. vs. Tan, et al., L-27730,
Jan. 21, 1974; Ferrer vs. Sepeng, supra).
The evidence m u s t be such as to w a r r a n t a reasonable
belief t h a t , if p r e s e n t e d , t h e r e s u l t of t h e case would
p r o b a b l y be a l t e r e d (Aureo vs. Aureo, 105 Phil. 77).
Hence, collateral, corroborative, cumulative or impeaching
evidence are generally not sufficient.
2. Where t h e motion for new t r i a l on these grounds

is not accompanied by an affidavit of m e r i t s , it should
p r o p e r l y be d e n i e d (National Marketing Corp. vs. De
Castro, 106 Phil. 803; Bernabe vs. CA, et al, L-18278,
Mar. 30, 1967; Ferrer vs. Sepeng, supra; Dionisio vs.
Puerto, et al, L-39452, Oct. 31, 1974). But in Ganaban
vs. Bayle (L-28864, Nov. 24, 1969), t h e S u p r e m e Court
held t h a t verification and affidavits of m e r i t s a r e required
only i f t h e g r o u n d s r e l i e d u p o n a r e f r a u d , a c c i d e n t ,
m i s t a k e or excusable negligence.
3. Affidavits of m e r i t s may be dispensed with when
t h e j u d g m e n t is null a n d void as where t h e court has no
j u r i s d i c t i o n over t h e d e f e n d a n t o r t h e s u b j e c t - m a t t e r
(Republic vs. De Leon, etc., et al, 101 Phil. 773), or is
434
RULE 37 NEW TRIAL OR RECONSIDERATION SECS.3-5
procedurally defective as where j u d g m e n t by default was

rendered before t h e reglementary period to a n s w e r had
expired (Gonzales vs. Francisco, 49 Phil. 747), or w h e r e
the defendant was unreasonably deprived of his day in
court (Valerio vs. Tan, et al., 99 Phil. 419) as when no
notice of h e a r i n g was furnished him in advance (Soloria
vs. De la Cruz, L-20738, Jan. 31, 1966; Gattoc vs. Sarrenas,
supra). Affidavits of merits are not required in motions
for reconsideration (Mendoza vs. Bautista, et al., L-45885,
April 28, 1983).
4. As to t h e m a n n e r provided for proof of motions,

see Sec. 7, Rule 133 which provides t h a t motions may be
proved by t h e record, affidavits, depositions or testimonial
evidence.
S e c . 3. Action upon motion for new trial or

reconsideration. — T h e t r i a l c o u r t m a y s e t a s i d e t h e
j u d g m e n t o r final o r d e r a n d g r a n t a n e w trial, u p o n
such terms as may be just, or may deny the motion.
If the court finds that excessive damages have been
a w a r d e d or t h a t the j u d g m e n t or final order is
contrary to the evidence or law, it may amend such
j u d g m e n t o r final o r d e r a c c o r d i n g l y . (3a)
Sec. 4. Resolution of motion. — A m o t i o n for n e w

trial or reconsideration shall be resolved within
t h i r t y (30) d a y s from t h e t i m e i t i s s u b m i t t e d for
r e s o l u t i o n , (n)
Sec. 5. Second motion for new trial. — A m o t i o n for

n e w t r i a l s h a l l i n c l u d e all g r o u n d s t h e n a v a i l a b l e
and those not so included shall be deemed waived.
A s e c o n d m o t i o n for n e w trial, b a s e d on a g r o u n d
not e x i s t i n g nor a v a i l a b l e w h e n t h e first m o t i o n w a s
m a d e , m a y b e filed w i t h i n t h e t i m e h e r e i n p r o v i d e d
e x c l u d i n g t h e t i m e d u r i n g w h i c h t h e first m o t i o n
had been pending.
435
R E M E D I A L LAW C O M P E N D I U M SEC. 6
No party shall be allowed a s e c o n d motion

for r e c o n s i d e r a t i o n of a j u d g m e n t or f i n a l order.
(4a; 4, IRG)
NOTES
1. Sec. 4 is a new provision i n t e n d e d to obviate

u n n e c e s s a r y p r o l o n g a t i o n o f t h e t r i a l s t a g e . While
reforms have been initiated to limit t h e period of trial
t h r o u g h continuous hearings, and the Constitution itself
prescribes t h e period for rendition of t h e j u d g m e n t , the
same can be set at n a u g h t by the u s u a l motions for new
trial or reconsideration with open-ended periods for their
r e s o l u t i o n a n d w h i c h i n effect freeze t h e j u d g m e n t
correspondingly.
2. T h e f i r s t s e n t e n c e of Sec. 5 i m p l e m e n t s t h e
"omnibus motion" rule u n d e r Sec. 8, Rule 15, with the
second sentence providing for t h e exception.
3. A second motion for new trial may be e n t e r t a i n e d
w h e r e t h e ground therefor was not available or existing
at t h e time w h e n t h e first motion was filed. T h u s , if the
first motion was based on fraud and was denied, a second
motion on t h e ground of newly discovered evidence can
still be e n t e r t a i n e d if such evidence was discovered and
became available only after t h e first motion had been
filed.
Sec. 6. Effect of granting of motion for new trial. —

If a new trial is granted in a c c o r d a n c e with the
provisions of this Rule, the original judgment or
final o r d e r s h a l l b e v a c a t e d , a n d t h e a c t i o n s h a l l
s t a n d for t r i a l de novo; b u t t h e r e c o r d e d e v i d e n c e
t a k e n u p o n t h e f o r m e r trial, i n s o far a s t h e s a m e i s
material and competent to establish the issues,
s h a l l b e u s e d a t t h e n e w trial w i t h o u t r e t a k i n g t h e
s a m e . (5a)
436
H.ULW
NOTES
1. Although t h e recorded evidence at the former trial

need not be t a k e n anew, the court, in the interest of justice,
may recall t h e witnesses who testified t h e r e i n for further
examination or cross-examination, unless they are
no longer available (Castillo vs. Sebullina, et al., 31 Phil.
518).
2. U n d e r the former Rules, this procedure was

observed: An order denying a motion for new t r i a l was
not appealable since t h e j u d g m e n t in t h e case wherein
such order is r e n d e r e d is not yet final. The remedy of t h e
m o v a n t i n s u c h a s i t u a t i o n w a s t o a p p e a l from t h e
j u d g m e n t and assign as an e r r o r in said appeal the fact of
denial of his motion for new trial. This was different
from t h e order denying a petition for relief u n d e r Rule 38
wherein t h e remedy was to appeal from such order, and
not from t h e j u d g m e n t in t h a t case since said j u d g m e n t
had already become final and was not appealable (Samia
vs. Medina, 56 Phil. 618; Bernabe vs. CA, et al., supra),
and in t h e appeal from said order, the appellant may also
a s s a i l t h e j u d g m e n t (Sec. 2, Rule 41 which h a s b e e n
repealed,).
U n d e r the p r e s e n t revised Rules, it is likewise
specifically provided t h a t an order denying a motion for
new t r i a l or reconsideration is not appealable, the remedy
being an appeal from the j u d g m e n t or final order in due
time (see Sec. 9 of t h i s Rule). This is reiterated in Sec. 1,
Rule 41 which provides t h a t no appeal may be t a k e n from,
inter alia, an order denying a petition for relief or any
similar motion seeking relief from j u d g m e n t . Instead,
according to said Rule, t h e aggrieved party may file an
a p p r o p r i a t e special civil action under Rule 65.
S e c . 7. Partial new trial or reconsideration. — If

t h e g r o u n d s for a m o t i o n u n d e r t h i s R u l e a p p e a r
t o t h e c o u r t t o affect t h e i s s u e s a s t o o n l y a part,
437
o r l e s s t h a n all o f t h e m a t t e r i n c o n t r o v e r s y , o r o n l y
o n e , o r l e s s t h a n all, o f t h e p a r t i e s t o it, t h e c o u r t
may order a n e w trial or grant reconsideration as
to such issues if severable without interfering with
t h e j u d g m e n t o r final o r d e r u p o n t h e r e s t . (6a)
Sec. 8. Effect of order for partial new trial. — W h e n

l e s s t h a n all o f t h e i s s u e s a r e o r d e r e d r e t r i e d , t h e
c o u r t m a y e i t h e r e n t e r a j u d g m e n t o r final o r d e r a s
to the rest, or stay the enforcement of such
j u d g m e n t o r final o r d e r u n t i l a f t e r t h e n e w trial.
(7a)
NOTES
1. T h i s p r o c e d u r e is p e r m i s s i b l e w h e r e e i t h e r a
several or a s e p a r a t e j u d g m e n t is proper (see Secs. 4 and
5, Rule 36).
2. Where one p a r t y files a motion for new t r i a l or
reconsideration a n d t h e o t h e r p a r t y seeks to perfect an
appeal from t h e said decision, t h e court should withhold
action on t h e a p p e a l until after t h e motion for new t r i a l or
r e c o n s i d e r a t i o n s h a l l h a v e b e e n resolved (Simsion vs.
Belmonte, L-25388, Aug. 31, 1970).
3. Where defendant's motion for new trial was denied
by t h e t r i a l court, it h a s been held t h a t he can perfect an
appeal from t h e j u d g m e n t and also proceed on certiorari
to set aside t h e order denying his motion for new trial.
There is no incompatibility between t h e two remedies as
one is directed against the j u d g m e n t and the other, against
the order denying t h e new t r i a l (Banco Filipino Savings
& Mortgage Bank vs. Campos, L-39905, Mar. 31, 1975).
C o n s i d e r i n g t h e provisions of Sec. 9 of t h i s Rule and
Sec. 1, Rule 4 1 , resort to these dual remedies now may
only be allowed u n d e r exceptional circumstances where
the factual situation and t h e d e m a n d s of justice justify
such recourses, and t h e claims involved in t h e case are so
438
separable and u r g e n t as to w a r r a n t relief by both appeal

and certiorari.
4. A motion to extend t h e r e g l e m e n t a r y period for

filing a motion for reconsideration is not authorized. The
r e g l e m e n t a r y period for t h e filing of t h e record on appeal
when required (but not t h e notice of appeal or, formerly,
t h e a p p e a l bond) m a y be e x t e n d e d , b u t t h e period for
perfecting an a p p e a l may not be extended for t h e purpose
of filing a motion for new trial or reconsideration (Roque,
et al. vs. Gunigundo, Adm. Case No. 1664, Mar. 30, 1979;
Habaluyas Enterprises, Inc., et al. vs. Japzon, et al., G.R.
No. 70895, Aug. 5, 1985).
5. In view of t h e fact t h a t the rulings in the foregoing

cases were based on t h e holding in Gibbs vs. Court of First
Instance (80 Phil. 160), and t h e Rules of Court did not
t h e n expressly prohibit or allow an extension of the period
to file a motion for reconsideration thereby r e s u l t i n g in a
division of views on this issue in the appellate courts, for
the guidance of the Bench and the Bar, the Supreme Court
r e s t a t e d and clarified t h e rules on this point as follows:
"1.) Beginning one m o n t h after t h e promulgation of
this Resolution, t h e rule shall be strictly enforced t h a t no
motion for extension of time to file a motion for new trial
or reconsideration may be filed with t h e (lower courts).
Such a motion may be filed only in cases pending with
the Supreme Court as t h e court of last resort, which may
in its sound discretion e i t h e r g r a n t or deny the extension
requested.
2.) In appeals in special proceedings under Rule 109
of the Rules of Court and in other cases wherein multiple
appeals are allowed, a motion for extension of time to file
the record on appeal may be filed within the reglementary
period of thirty (30) days [Moya vs. Barton, 76 Phil. 831;
Heirs of N a n t e s vs. Court of Appeals, July 25, 1983, 123
SCRA 753]. If t h e court denies the motion for extension,
the appeal m u s t be t a k e n within the original period [Bello
439
vs. F e r n a n d o , J a n . 30, 1962, 4 SCRA 185], i n a s m u c h as

such a motion does not s u s p e n d t h e period for a p p e a l
[Reyes vs. Sta. Maria, November 20, 1972, 48 SCRA 1].
The t r i a l court may g r a n t said motion after t h e expiration
of t h e period for appeal provided it was filed within the
original period [Valero vs. Court of Appeals, J u n e 28, 1973,
51 SCRA 467; B e r k e n k o t t e r vs. Court of Appeals,
S e p t e m b e r 2 8 , 1 9 7 3 , 5 3 S C R A 2 2 8 ] " (Habaluyas
Enterprises, Inc., et al. vs. Japzon, et al., Resolution on
Motion for Reconsideration, G.R. No. 70895, May 30,
1986, en banc; cf. Bacaya, et al. vs. IAC, et al., G.R. No.
74824, Sept. 15, 1986; Rodriguez, et al. vs. CA, et al, G.R.
No. 80718, Jan. 29, 1988).
The prohibition against a motion for extension of time
to file a motion for new t r i a l or reconsideration is now
specifically provided in t h e second p a r a g r a p h of Sec. 3,
Rule 4 1 .
Sec. 9. Remedy against order denying a motion for new

trial or reconsideration. — An o r d e r d e n y i n g a m o t i o n
for n e w t r i a l o r r e c o n s i d e r a t i o n i s n o t a p p e a l a b l e ,
the remedy being an appeal from the j u d g m e n t or
final o r d e r , (n)
NOTE
1. See notes u n d e r Sec. 6 of t h i s Rule.
440
RULE 38
R E L I E F FROM J U D G M E N T S , O R D E R S ,
OR OTHER P R O C E E D I N G S
S e c t i o n 1. Petition for relief from judgment, order,

or other proceedings. — W h e n a j u d g m e n t or final o r d e r
is entered, or any other proceeding is thereafter
t a k e n a g a i n s t a p a r t y i n a n y c o u r t t h r o u g h fraud,
accident, mistake, or excusable negligence, he may
file a petition in such court and in the same case
praying that the judgment, order or proceeding be
s e t a s i d e . (2a)
Sec. 2. Petition for relief from denial of appeal. —

W h e n a j u d g m e n t or final o r d e r is r e n d e r e d by a n y
c o u r t in a c a s e , a n d a p a r t y t h e r e t o , by fraud,
accident, mistake, or excusable negligence, has
b e e n p r e v e n t e d from t a k i n g a n a p p e a l , h e m a y f i l e
a p e t i t i o n in s u c h c o u r t a n d in t h e s a m e c a s e p r a y i n g
that the appeal be given due course, (la)
NOTES
1. Secs. 1 and 2, although now in transposed order,

are substantially the same as their antecedents b u t with
a s u b s t a n t i a l p r o c e d u r a l difference. While u n d e r t h e
former Rule petitions for relief from a judgment, final order
or other proceeding rendered or taken in the then
municipal courts h a d to be filed and decided in the former
Courts of First Instance, such petition should now be filed
in and resolved by the court in the same case from which
the petition arose. Thus, the petition for relief from a
judgment, final order or proceeding involved in a case tried
by a municipal trial court shall be filed in and decided by
the same court in the same case just like the procedure
followed in the p r e s e n t Regional Trial Court.
441
T h i s p r o c e d u r a l c h a n g e is a c o n s e q u e n c e of t h e
uniform procedure adopted for trial courts (Rule 5) and in
consideration of t h e fact t h a t municipal trial courts are
a l r e a d y c o u r t s o f r e c o r d a n d , for t h a t m a t t e r , w i t h
expanded jurisdiction (see R.A. 7691; Mesina, et al. vs.
Meer, G.R. No. 146845, July 2, 2002).
2. A petition for relief is an equitable remedy and is

allowed only in exceptional cases from final j u d g m e n t s or
o r d e r s w h e r e no o t h e r r e m e d y is available (Palmares,
et al. vs. Jimenez, et al., 90 Phil. 773). It will not be
e n t e r t a i n e d when the proper remedy is appeal or certiorari
(Fajardo vs. Bayona, et al., 98 Phil. 659).
3. The p h r a s e "other proceeding" in Sec. 1 includes

an order or w r i t of execution (Aquino, et al. vs. Blanco,
et al., 79 Phil. 647; Cayetano vs. Ceguerra, L-18831,
Jan. 30, 1965), or an order dismissing an appeal (Medran
vs. CA, 83 Phil. 164). Since these a r e not required to be
e n t e r e d , t h e period s t a r t s from rendition of t h e order or
t a k i n g of t h e proceeding or from t h e d a t e of occurrence,
since e n t r y i s e i t h e r u n n e c e s s a r y o r i n c o n s e q u e n t i a l
(Samonte, et al. vs. Samonte, et al., L-40683, June 27,
1975), and t h e court will merely set aside t h e proceeding
and allow t h e p a r t y to act as if t h e proceeding never took
place (see Rafanan vs. Rafanan, 98 Phil. 162; Bantug
vs. Roxas, 73 Phil. 13).
4. A p e t i t i o n for r e l i e f i s , in effect, a s e c o n d
opportunity for an aggrieved p a r t y to ask for a new trial
(Sayman vs. CA, et al, L-29479, Feb. 21, 1983). Hence,
fraud, accident, mistake or excusable negligence, as
grounds for a petition for relief, have the same concepts
t h a t they have in motions for new trial. Also, as in a
motion for new trial, a mistake of law (especially where
t h e p a r t y w a s of limited intelligence) w a s considered
sufficient to justify a p e t i t i o n for relief (Vasquez vs.
Mesagal, 100 Phil. 360).
442
RULE 38 RELIEF FROM J U D G M E N T S , SEC. 3
ORDERS OR OTHER PROCEEDINGS
5. A petition for relief under Sec. 1 of this Rule has

been held to be applicable to all k i n d s of special
proceedings, such as land registration (Elvira vs. Filamor,
56 Phil. 305), i n t e s t a t e s e t t l e m e n t (Reyes vs. Gonzales,
47 Phil. 339; Onas vs. Javilo, 54 Phil. 602) a n d
g u a r d i a n s h i p proceedings (Panis vs. Yangco, 52 Phil.
498).
S e c . 3. Time for filing petition; contents and

verification. — A p e t i t i o n p r o v i d e d for i n e i t h e r o f t h e
p r e c e d i n g s e c t i o n s o f t h i s R u l e m u s t b e v e r i f i e d , filed
w i t h i n s i x t y (60) d a y s a f t e r t h e p e t i t i o n e r l e a r n s o f
the j u d g m e n t , final o r d e r , or o t h e r p r o c e e d i n g to
b e s e t a s i d e , a n d n o t m o r e t h a n s i x (6) m o n t h s a f t e r
s u c h j u d g m e n t o r final o r d e r w a s e n t e r e d , o r s u c h
proceeding was taken, and must be accompanied
with affidavits s h o w i n g t h e fraud, accident, m i s t a k e ,
or excusable negligence relied upon, a n d t h e facts
constituting t h e petitioner's good a n d substantial
c a u s e o f a c t i o n o r d e f e n s e , a s t h e c a s e m a y b e . (3)
NOTES
1. The two periods for the filing of a petition for relief

are not extendible a n d never i n t e r r u p t e d (Quijano vs.
Tameta, L-16473, April 20, 1961). Thus, a petition for
c e r t i o r a r i does not s u s p e n d t h e periods p r e s c r i b e d by
this section (Palomares vs. Jimenez, 90 Phil. 773), and
n e i t h e r d o e s a m o t i o n for r e c o n s i d e r a t i o n o f t h e
order subject of t h e petition for relief (Cruz vs. Oppen,
Inc., L-23861, Feb. 17, 1968), especially if filed in t h e
wrong court. These periods cannot be subject to a condition
or a contingency as they are devised to meet a condition
or a contingency (Vda. de Salvatierra vs. Garlitos, etc., et
al., 103 Phil. 157). Both periods must be complied with
(see Phil. Rabbit Bus Lines, Inc. vs. Arciaga, et al.,
L-29701, Mar. 16, 1987).
443
In one case (Balite vs. Cabangon, et al., L-24105,

May 18, 1967), it w a s held t h a t a petition for relief filed
on t h e 65th day from notice of t h e order, b u t within 6
months from t h e t a k i n g of such proceeding, could be given
due course u n d e r t h e a u t h o r i t y of Prudential Bank vs.
Macadaeg (105 Phil. 791) and Angola vs. Tan (106 Phil.
1164 fUnrep.J). It should be noted, however, t h a t the
Balite case involved a proceeding in t h e t h e n Court of
A g r a r i a n Relations which was not bound by the technical
rules of procedure and evidence. F u r t h e r m o r e , no
j u d g m e n t had been r e n d e r e d as t h e proceeding arose from
a default order only. It w a s likewise pointed out t h a t
Rule 38 should not apply to an interlocutory order.
Also, in PHHC vs. Tiongco, et al. (L-18891, Nov. 28,
1964), while t h e petition for relief was filed by t h e new
c o u n s e l for t h e d e f e n d a n t s b e y o n d t h e 6 0 - d a y
r e g l e m e n t a r y period, the S u p r e m e Court ordered t h e trial
court to give it due course since t h e original counsel of the
defendants had deprived t h e m of t h e i r day in court by his
"fishy and suspicious" actuations of a b a n d o n i n g their case
and without even informing t h e m of t h e adverse decision
against t h e m . The S u p r e m e Court also decided to consider
t h e petition as one for relief not only from t h e j u d g m e n t
but from the order of execution since Rule 38 also includes
relief from such orders, in which case said petition was
filed within 60 days from the order.
However, in a more recent case, t h e petition for relief
was held to have been correctly denied w h e r e it was filed
one day too late, t h a t is, 61 days after petitioner's receipt
of t h e n o t i c e of t h e d i s m i s s a l of t h e o r i g i n a l a c t i o n
(Phil. Rabbit Bus Lines, Inc. vs. Arciaga, et al., L-29701,
Mar. 16, 1987). The special circumstances obtaining in
the first two cases above mentioned, which w a r r a n t e d the
relaxation of t h e rule, were not p r e s e n t in this last stated
case.
444
RULE 38 RELIEF FROM JUDGMENTS, SEC. 3
2. The 60-day period is reckoned from t h e time t h e

party acquired knowledge of the order, j u d g m e n t or
proceedings and not from t h e date he actually read t h e
same (Perez vs. Araneta, 103 Phil. Phil. 1141 fUnrep.J).
The 6-months period is computed from the date of
e n t r y of t h e order or j u d g m e n t , which, as it was t h e n
defined in Sec. 2, Rule 36, was from the recording of the
j u d g m e n t or order in t h e book of e n t r i e s of j u d g m e n t s and
not from t h e date of t h e order of default or the rendition
of t h e j u d g m e n t or t h e finality of the j u d g m e n t . However,
as now amended, t h e date of t h e finality of t h e j u d g m e n t
or final order is deemed to be t h e date of its entry. With
respect to t h e "proceedings" in t h e Regional Trial Courts,
which can be t h e subject of petitions for relief, t h e date
when t h e proceedings were taken controls (see Dirige vs.
Biranya, L-22033, July 30, 1966). Also, in j u d g m e n t s
upon compromise, being immediately executory,
prescription r u n s from t h e date of its rendition, hence t h e
6 - m o n t h s p e r i o d also r u n s t h e r e f r o m (Bodiogran vs.
Ceniza, et al., 102 Phil. 750; Dirige vs. Biranya, supra).
3. An affidavit of m e r i t s m u s t accompany the

petition a n d t h e petition itself m u s t be verified. As in
motions for new trial, the absence of an affidavit of merits
is a f a t a l defect a n d w a r r a n t s d e n i a l of t h e p e t i t i o n
(Fernandez vs. Tan Tiong Tick, L-15877, April 28, 1961;
Concepcion vs. Presiding Judge, etc., et al., L-35489,
Dec. 15, 1982), unless t h e facts required to be set out in
the affidavit of m e r i t s also a p p e a r in the verified petition
(Fabar, Inc. vs. Rodelas, L-46394, Oct. 26, 1977). Also,
like motions for new trial, such affidavits are not required
when t h e j u d g m e n t or order is void for w a n t of jurisdiction
(Republic vs. De Leon, 101 Phil. 773), or was obtained by
fraud or mistake (Lupisan vs. Alfonso, et al., 78 Phil. 842),
or with denial of due process (Valerio vs. Tan, etc., et al.,
97 Phil. 558).
445
Sec. 4. Order to file an answer. — If t h e p e t i t i o n is

s u f f i c i e n t i n f o r m a n d s u b s t a n c e t o j u s t i f y t h e relief,
t h e c o u r t i n w h i c h i t i s filed, s h a l l i s s u e a n o r d e r
requiring the adverse parties to answer the same
w i t h i n f i f t e e n (15) d a y s f r o m t h e r e c e i p t thereof.
The order shall be served in such manner as the
court may direct, together with copies of the
p e t i t i o n a n d t h e a c c o m p a n y i n g a f f i d a v i t s . (4a)
Sec. 5. Preliminary injunction pending proceedings.

— T h e c o u r t i n w h i c h t h e p e t i t i o n i s filed m a y g r a n t
such preliminary injunction as may be necessary
for t h e p r e s e r v a t i o n o f t h e r i g h t s o f t h e p a r t i e s ,
u p o n t h e f i l i n g b y t h e p e t i t i o n e r o f a b o n d i n favor
of the adverse party, conditioned that if the petition
is d i s m i s s e d or the petitioner fails on the trial of
the case u p o n its merits, he will pay the adverse
p a r t y all d a m a g e s a n d c o s t s t h a t m a y b e a w a r d e d t o
him by reason of the issuance of such injunction
or the other proceedings following the petition; but
such injunction shall not operate to discharge or
extinguish any lien w h i c h the adverse party may
have acquired upon the property of the petitioner.
(5a)
NOTES
1. Where a w r i t of execution was already issued and

levy was made before t h e petition for relief was filed, the
lien t h a t may have been acquired over t h e property is not
d i s c h a r g e d by t h e s u b s e q u e n t i s s u a n c e of a w r i t of
p r e l i m i n a r y injunction. T h e r e a f t e r , if t h e p e t i t i o n is
denied, t h e court has t h e power to r e i n s t a t e t h e writ of
execution (Ayson vs. Ayson, 101 Phil. 1223 (Unrep.J).
2. Unless a writ of preliminary injunction has been
issued, execution of t h e j u d g m e n t shall proceed even if
446
RULE 38 RELIEF FROM J U D G M E N T S , SEC. 6
the order denying t h e petition for relief is pending on

appeal. Said writ may be sought either in the trial or
appellate courts (Servicewide Specialists, Inc. vs. Sheriff
of Manila, et al., G.R. No. 74586, Oct. 17, 1986).
Sec. 6. Proceedings after answer is filed. — A f t e r

the filing of the answer or the expiration of the
period therefor, the court shall hear the petition
and if after such hearing, it finds that the
allegations thereof are not true, the petition shall
be d i s m i s s e d ; b u t if it f i n d s s a i d a l l e g a t i o n s to be
t r u e , i t s h a l l s e t a s i d e t h e j u d g m e n t , final o r d e r o r
other proceeding complained of upon such terms
as may be just. Thereafter, the case shall stand as
i f s u c h j u d g m e n t , final o r d e r o r o t h e r p r o c e e d i n g
had never been rendered, issued or taken. The
court shall then proceed to hear and determine the
c a s e as if a t i m e l y m o t i o n for a n e w t r i a l or
r e c o n s i d e r a t i o n h a d b e e n g r a n t e d b y it. (6a)
NOTES
1. There a r e two steps or hearings in a petition for

relief: (a) a h e a r i n g to determine w h e t h e r the judgment,
order or proceeding should be set aside; and (b) in the
affirmative, a h e a r i n g on t h e m e r i t s of t h e case
(Villanueva vs. Alcoba, 101 Phil. 277).
2. Failure to file an answer to the petition for relief
does not constitute default as, even without such answer,
the court will still have to h e a r the petition and determine
its merits.
3. An o r d e r g r a n t i n g a p e t i t i o n for r e l i e f is
interlocutory a n d non-appealable. On the other hand,
the former rule was t h a t an order denying a petition for
relief w a s a p p e a l a b l e a n d , in t h e course thereof, t h e
appellant may assail the j u d g m e n t on the merits (Sec. 2,
AA1
of the former Rule 41), and t h a t appeal, not certiorari or

prohibition, was t h e remedy w h e n the petition for relief is
d e n i e d (De Jesus vs. Domingo, et al., L-30006-07,
Aug. 31, 1970). Those doctrinal rules have already been
changed (see Note 2 u n d e r Sec. 6, Rule 37).
Sec. 7. Procedure where the denial of an appeal is set

aside. — W h e r e t h e d e n i a l of an a p p e a l is s e t a s i d e ,
the lower court shall be required to give due course
to the appeal and to elevate the record of the
a p p e a l e d c a s e a s i f a t i m e l y a n d p r o p e r a p p e a l had
b e e n m a d e . (7a)
448
RULE 39
EXECUTION, SATISFACTION A N D
EFFECTS OF JUDGMENTS
S e c t i o n 1. Execution upon judgments or final

orders. — E x e c u t i o n s h a l l i s s u e as a m a t t e r of r i g h t ,
on motion, upon a j u d g m e n t or order that disposes
of the action or proceeding upon the expiration of
the period to appeal therefrom if no appeal has been
duly perfected, (la)
If the appeal has been duly perfected and

finally resolved, the e x e c u t i o n may forthwith be
a p p l i e d for i n t h e c o u r t o f o r i g i n , o n m o t i o n o f t h e
judgment obligee, submitting therewith certified
t r u e c o p i e s o f t h e j u d g m e n t o r j u d g m e n t s o r final
order or orders sought to be enforced and of the
e n t r y thereof, w i t h n o t i c e t o t h e a d v e r s e party.
The appellate court may, on motion in the same
case when, the interest of justice so requires, direct
the court of origin to issue the writ of execution,
(n)
NOTES
1. T h e t e r m "final o r d e r " is used in two s e n s e s

depending on w h e t h e r it is used on the issue of a p p e a l -
ability or on t h e issue of binding effect. For purposes of
appeal, an order is "final" if it disposes of the action, as
distinguished from an interlocutory order which leaves
something to be done in the trial court with respect to the
merits of t h e case (De la Cruz, et al. vs. Paras, et al.,
L-41053, Feb. 27, 1976). For purposes of binding effect
or whether it can be subject of execution, an order is "final"
or executory after the lapse of the reglementary period to
appeal and no appeal has been perfected (see Perez, et al.
449
vs. Zulueta, 106 Phil. 264; cf. Denso [Phil.], Inc. vs.
IAC, et al., G.R. No. 75000, Feb. 27, 1987; Montilla vs.
CA, et al., L-47968, May 9, 1988).
2. On the aspect of appealability, these revised Rules
u s e t h e a d j e c t i v e "final" w i t h r e s p e c t t o o r d e r s a n d
resolutions since, to t e r m i n a t e a case, the trial courts issue
orders, while t h e appellate courts and most of t h e quasi-
judicial agencies issue resolutions. J u d g m e n t s a r e not so
qualified since t h e u s e of t h e so-called i n t e r l o c u t o r y
j u d g m e n t s is not favored in t h i s jurisdiction, while such
categorization of an order or a resolution for purposes of
d e n o t i n g t h a t it is a p p e a l a b l e is to d i s t i n g u i s h t h e m
from interlocutory orders or resolutions. However, by
force of extended usage, t h e p h r a s e "final and executory
j u d g m e n t " i s s o m e t i m e s used a n d t o l e r a t e d , a l t h o u g h
t h e u s e o f " e x e c u t o r y " a l o n e w o u l d suffice. T h e s e
observations also apply to the several and separate
j u d g m e n t s contemplated in Rule 36, or p a r t i a l j u d g m e n t s
which totally dispose of a p a r t i c u l a r claim or severable
p a r t of the case, subject to t h e power of the court to suspend
or defer action on an appeal from or any further proceeding
in such special j u d g m e n t , or as provided by Rule 35 on
t h e m a t t e r of p a r t i a l s u m m a r y j u d g m e n t s which a r e not
c o n s i d e r e d as a p p e a l a b l e (see Sec. 4, Rule 35 a n d
explanation t h e r e i n ) .
The second p a r a g r a p h of this section is an innovation
in response to complaints over t h e delay caused by the
former p r o c e d u r e in o b t a i n i n g a writ of execution of a
j u d g m e n t , which h a s already been affirmed on appeal,
with notice to t h e p a r t i e s . As t h i n g s t h e n stood, after the
e n t r y of j u d g m e n t in t h e appellate court, t h e prevailing
party had to wait for the records of the case to be remanded
to t h e court of origin when and where he could t h e n move
for t h e issuance of a writ of execution. The intervening
time could sometimes be substantial, especially if the court
a quo is in a remote province, and could also be availed of
by t h e losing p a r t y to delay or t h w a r t actual execution.
450
RULE 39 EXECUTION, SATISFACTION AND SEC 1
EFFECTS OF JUDGMENTS
On these considerations, the Supreme Court issued

C i r c u l a r No. 24-94, d a t e d A p r i l 18, 1994, a p p r o v i n g
a n d p r o m u l g a t i n g in a d v a n c e t h i s a m e n d e d Section 1
o f R u l e 3 9 a n d d e c l a r i n g t h e s a m e effective a s o f
J u n e 1, 1994.
Under t h e p r e s e n t procedure, the prevailing party can
secure certified t r u e copies of the j u d g m e n t or final order
of t h e appellate court and e n t r y thereof, and submit the
same to t h e court of origin with and to justify his motion
for a writ of execution, without waiting for its receipt of
the records from t h e appellate court. T h a t motion m u s t
be with notice to t h e adverse party, with a hearing when
the circumstances so require, to enable him to file any
objection t h e r e t o or bring to the attention of said court
m a t t e r s which may have t r a n s p i r e d during the pendency
of t h e a p p e a l a n d w h i c h m a y h a v e a b e a r i n g on t h e
execution sought to enforce t h e judgment.
The t h i r d p a r a g r a p h of this section, likewise a new
provision, is due to the experience of the appellate
courts wherein t h e t r i a l court, for reasons of its own or
other unjustifiable circumstances, unduly delays or
unreasonably refuses to act on the motion for execution
or issue t h e writ therefor. On motion in the same case
while the records are still with the appellate court, or even
after the same have been r e m a n d e d to the lower court,
the appellate court can direct the issuance of the writ of
execution since such act is merely in the enforcement of
its j u d g m e n t and which it has the power to require.
3. Sec. 1 is the rule on when j u d g m e n t s or orders
may be executed as a m a t t e r of right, t h a t is, it becomes
the mandatory or ministerial duty of the court to issue a
writ of execution to enforce the judgment. This happens
w h e n t h e j u d g m e n t becomes executory (Far Eastern
Surety & Insurance Co., Inc. vs. Vda. de Hernandez, et al.
L-30359, Oct. 16, 1975). U n d e r Sec. 2, execution may
issue in the discretion of the court even before the lapse of
451
t h e period to appeal, t h a t is, even before t h e j u d g m e n t or

order h a s become executory.
When execution is a m a t t e r of right, t h e j u d g m e n t
debtor need not be given advance notice or prior hearing
of such motion for execution (Pamintuan, et al. vs. Muhoz,
et al., L-26331, Mar. 15, 1968; Far Eastern Surety &
Insurance Co., Inc. vs. Vda. de Hernandez, et al., supra;
Development Bank of Rizal vs. CA, et al., G.R. No. 75964,
Dec. 1, 1987). An ex parte motion for t h e issuance of the
writ would suffice since t h e t r i a l court may t a k e judicial
notice of t h e record of t h e case to d e t e r m i n e t h e propriety
of t h e issuance thereof. However, w h e r e t h e losing party
shows t h a t s u b s e q u e n t facts h a d t a k e n place which would
r e n d e r execution unjust, a h e a r i n g on t h e motion should
be h e l d (Luzon Surety Co. vs. Beson, L-26865-66,
Jan. 30, 1976).
4. Where the j u d g m e n t or order h a s become

executory, t h e c o u r t c a n n o t refuse to i s s u e a w r i t of
execution, except:
(a) W h e n s u b s e q u e n t f a c t s a n d c i r c u m s t a n c e s
transpire which render such execution unjust or
impossible, such as a s u p e r v e n i n g cause like t h e act of the
C o m m i s s i o n e r o f Civil S e r v i c e f i n d i n g t h e p l a i n t i f f
administratively guilty a n d which constituted a b a r to his
r e i n s t a t e m e n t as ordered by t h e t r i a l court in a civil case
(Butuan City vs. Ortiz, et al, L-18054, Dec. 22, 1961), or
w h e r e t h e defendant b a n k was placed u n d e r receivership
(Lipan vs. Development Bank of Rizal, G.R. No. 73884,
Sept. 24, 1987);
(b) On equitable grounds, as w h e n t h e r e h a s been
a c h a n g e in the s i t u a t i o n of t h e p a r t i e s which
m a k e s e x e c u t i o n i n e q u i t a b l e (Albar vs. Carandang,
L-18003, Sept. 29, 1962; Heirs of Pedro Guminpin vs.
CA, et al, L-34220, Feb. 21, 1983; Luna vs. IAC, et al,
G.R. No. 68374, June 18, 1985);
452
RULE 39 EXECUTION, SATISFACTION SEC 1
AND EFFECTS OF JUDGMENTS
(c) Where the j u d g m e n t has been novated by the

parties (Fua Cam Lu vs. Yap Fauco, 74 Phil. 287; cf.
Zapanta vs. De Rotaeche, 21 Phil. 154; Salvante vs. Cruz,
88 Phil. 236; Dormitorio vs. Fernandez, et al., L-25889
Aug. 21, 1976);
(d) When a petition for relief or an action to enjoin
t h e j u d g m e n t is filed and a p r e l i m i n a r y injunction is
prayed for and granted (see Sec. 5, Rule 38);
(e) When t h e j u d g m e n t has become dormant, the
5-year period u n d e r Sec. 6 of this Rule having expired
without the j u d g m e n t having been revived (Cunanan vs.
CA, et al., L-25511, Sept. 28, 1968); or
(f) Where the j u d g m e n t t u r n s out to be incomplete
(Del Rosario vs. Villegas, 49 Phil. 634; Ignacio, et al. vs.
Hilario, et al., 76 Phil. 605) or is conditional (Cu Unjieng,
etc. vs. Mabalacat Sugar Co., 70 Phil. 380) since, as a
m a t t e r of law, such j u d g m e n t cannot become final.
5. Q u a s h a l of a w r i t of execution is proper when

(a) it was improvidently issued; (b) it was defective in
substance; (c) it is issued against the wrong party; (d) the
judgment was already satisfied; (e) it was issued without
a u t h o r i t y ; (f) a change in t h e s i t u a t i o n of the p a r t i e s
renders execution inequitable; and (g) the controversy was
never validly submitted to the court (Cobb Perez vs. Lantin,
L-22320, May 22, 1968; Sandico, et al. vs. Piguing, et
al., L-26115, Nov. 29, 1971). The same remedy is also
available where the writ of execution varies the t e r m s of
the judgment, or where it is sought to be enforced against
p r o p e r t y e x e m p t from e x e c u t i o n o r w h e r e t h e r e i s
ambiguity in the terms of the judgment. Ultimately, these
defects may also be challenged on appeal or in certiorari,
prohibition or m a n d a m u s actions (Limpin, et al. vs. IAC,
et al., G.R. No. 70987, Jan. 30, 1987).
Where t h e r e is s u b s t a n t i a l variance between t h e
judgment and the writ of execution issued to enforce the
453
same, said w r i t is a nullity (Malacora, et al. vs. CA, et al.,

G.R. No. 51042, Sept. 30, 1982, and cases t h e r e i n cited).
6. After j u d g m e n t h a s become executory, the court
cannot a m e n d t h e same, except:
(a) To m a k e corrections of clerical errors, mistakes
or omissions (Phil. Engineering Corp. vs. Ceniza, L-17834,
Sept. 29, 1962; Presbitero vs. CA, et al., L-34241,
May 28, 1984), as by an a m e n d m e n t nunc pro tunc, but
s u b s t a n t i a l changes cannot be effected by a nunc pro tunc
a m e n d m e n t (Maramba vs. Lozano, L-21533, June 29,
1967);
(b) To clarify an ambiguity which is borne out by
a n d justifiable in t h e context of t h e decision (Lacson vs.
Paredes, 63 Phil. 87), especially if t h e p a r t i e s acquiesced
t h e r e t o (Orbase, et al. vs. Nocos, et al., G.R. No. 70603,
May 30, 1986); or
(c) In j u d g m e n t s for s u p p o r t , w h i c h c a n a l w a y s
be a m e n d e d from t i m e to time, in light of t h e circum-
stances of t h e p a r t i e s (Florendo vs. Organo, 90 Phil. 483;
cf. Canonizado vs. Benitez, etc., et al., L-49315 a n d
G.R. No. 60966, Feb. 20, 1984).
7. The r e m e d i e s a g a i n s t a j u d g m e n t or order which
h a s become executory a r e (a) a petition for relief u n d e r
Rule 38, (b) a direct a t t a c k a g a i n s t t h e j u d g m e n t , or (c) a
collateral a t t a c k a g a i n s t t h e j u d g m e n t .
a. A direct a t t a c k a g a i n s t t h e j u d g m e n t is made
t h r o u g h an action or proceeding t h e m a i n object of which
is to a n n u l , set aside, or enjoin the enforcement of such
j u d g m e n t , if not yet carried into effect; or if t h e property
h a s been disposed of, t h e aggrieved p a r t y may sue for
its recovery (Banco Espahol-Filipino vs. Palanca, 37 Phil.
921). Such j u d g m e n t may be annulled on t h e ground of
lack of jurisdiction, fraud or t h a t it is contrary to law, in
an action b r o u g h t for said purpose and on any of these
g r o u n d s (Panlilio, et al. vs. Garcia, et al., L-29038,
454
RULE 39 EXECUTION, SATISFACTION SEC. 1
Dec. 27, 1982), since said judgment is void as a consequence

in whole or in p a r t (Agustin vs. Bocalan, L-46000,
Mar. 18, 1985). This is necessary where a judgment does
not, on its face, reveal the nullity or the fact t h a t it is
vitiated by fraud (Cadano vs. Cadano, L-34998, Jan. 11,
1973). See, however, Rule 47 and the notes t h e r e u n d e r .
A collateral or incidental attack is made when, in
another action to obtain a different relief, an attack on
the j u d g m e n t is made as an incident in said action. This
is proper only w h e n it is p a t e n t t h a t t h e court which
rendered said j u d g m e n t had no jurisdiction (see Reyes, et
al. vs. Barreto-Datu, 94 Phil. 446; Resensons, Inc., et al.
vs. Jimenez, et al., L-41225, Nov. 11, 1975; Macabingkil
vs. PHHC, et al., L-29080, Aug. 17, 1976).
b. In an action to a n n u l a judgment on the ground
of fraud, the fraud must be extrinsic, i.e., as the means
whereby j u d g m e n t was procured, such as where it
prevented a p a r t y from having a trial or from presenting
all of his case to the court (Asian Surety & Insurance Co.,
Inc. vs. Island Steel, Inc., et al, L 31366, Nov. 15, 1982)
and which affects and goes into the jurisdiction of the court
(Avendana, et al. vs. Bautista, et al, G.R. No. 52092,
April 8, 1986). The extrinsic fraud for a n n u l m e n t of a
j u d g m e n t is one committed by t h e adverse p a r t y , not
by p l a i n t i f f ' s own c o u n s e l who misled said plaintiff
(Sanchez vs. Tupas, et al, G.R. No. 76690, Feb. 29, 1988).
Intrinsic fraud, or t h a t found in the cause of action or
m a t t e r put in issue and presented for adjudication, is not
a ground for a n n u l m e n t of judgment (Cordovis, et al. vs.
Obias, et al, L-24080, April 26, 1968). The same
procedure as in Rule 38, i.e., a hearing to first determine
w h e t h e r t h e j u d g m e n t is to be s e t aside, and in t h e
affirmative, a trial on the merits, should be followed in
t h e C o u r t of F i r s t I n s t a n c e (Siyangco vs. Costibolo,
L-22506, Feb. 28, 1969). See t h e p r o c e d u r e as now
outlined by Rule 47.
455
It was previously held t h a t such action to a n n u l the

j u d g m e n t m u s t be i n s t i t u t e d in t h e very same court and
sala which r e n d e r e d t h e j u d g m e n t (Mas vs. Dumaraog,
L-16252, Sept. 29, 1964; Sterling Investment Corp.
vs. Ruiz, L-30694, Oct. 31, 1969) and w i t h i n 4 years from
discovery of the fraud (Anuran vs. Aquino, 38 Phil. 29;
Art. 1146, Civil Code; Arellano vs. CFI of Sorsogon, et al.,
L-34897, July 15, 1975). However, in Dulap, et al. vs.
CA, et al. (L-28306, Dec. 18, 1971), it was held t h a t any
Court of First Instance or branch thereof can take
cognizance of such action to a n n u l a final j u d g m e n t . This
was r e i t e r a t e d in Gianan vs. Imperial, et al. (L-37963,
F e b . 2 8 , 1974), Francisco vs. Aquino ( L - 3 3 2 3 5 - 5 6 ,
J u l y 2, 1976) a n d Singson, et al. vs. Saldajeno, et al.
(L-27343, Feb. 28, 1979). However, u n d e r B.P. Blg. 129,
t h e I n t e r m e d i a t e Appellate Court (now, Court of Appeals)
has exclusive original jurisdiction in actions to a n n u l the
j u d g m e n t of Regional Trial C o u r t s (Sec. 9[2J), a n d t h e
Regional Trial C o u r t s r e t a i n t h e i r jurisdiction to a n n u l
j u d g m e n t s of inferior courts in t h e region (Sec. 19[6J).
c. An action to a n n u l a j u d g m e n t t h e r e t o f o r e
r e n d e r e d by a Regional Trial Court, a n d reversed by the
Court of Appeals whose decision has become final, is within
t h e exclusive original jurisdiction of t h e Court of Appeals,
p u r s u a n t to Sec. 9, B.P. Blg. 129. While t h e j u d g m e n t
being challenged may have been t h a t of the Court
of Appeals, it was actually an appellate judgment
r e n d e r e d on a review of t h e t r i a l court's decision. Said
action for a n n u l m e n t could not be filed in t h e S u p r e m e
Court since factual issues of alleged extrinsic fraud, relied
on for the a n n u l m e n t sought, are not within its jurisdiction
to resolve (Conde, et al. vs. IAC, et al., G.R. No. 70443,
Sept. 15, 1986).
d. An action to a n n u l a j u d g m e n t is not necessarily
limited to those principally or secondarily bound
t h e r e u n d e r . Any person adversely affected thereby can
enjoin its enforcement and have it declared a nullity on
456
t h e g r o u n d of e x t r i n s i c fraud a n d collusion used in

o b t a i n i n g s u c h j u d g m e n t (Militante vs. Edrosolano,
et al, L-27940, June 10, 1971).
Sec. 2. Discretionary execution.—

(a) Execution of a judgment or final order pending
appeal. — On m o t i o n of t h e p r e v a i l i n g p a r t y w i t h
n o t i c e t o t h e a d v e r s e p a r t y filed i n t h e trial c o u r t
while it has jurisdiction over the case and is in
p o s s e s s i o n o f e i t h e r t h e o r i g i n a l record o r t h e r e c o r d
o n a p p e a l , a s t h e c a s e m a y be, a t t h e t i m e o f t h e
filing of such motion, said court may, in its
d i s c r e t i o n , o r d e r e x e c u t i o n of a j u d g m e n t or final
o r d e r e v e n before t h e e x p i r a t i o n o f t h e p e r i o d t o
appeal.
After t h e trial c o u r t h a s l o s t j u r i s d i c t i o n , t h e
m o t i o n for e x e c u t i o n p e n d i n g a p p e a l m a y b e filed
in the appellate court.
Discretionary execution may only issue upon
g o o d r e a s o n s to be s t a t e d in a s p e c i a l o r d e r after
due hearing.
(b) Execution of several, separate or partial
judgments. — A s e v e r a l , s e p a r a t e or partial j u d g m e n t
may be executed under the same terms and
c o n d i t i o n s as e x e c u t i o n of a j u d g m e n t or final o r d e r
p e n d i n g a p p e a l . (2a)
NOTES
1. This section was amended to make it clear t h a t

discretionary execution may be granted by the trial court
while it h a s j u r i s d i c t i o n over the case and is still in
possession of the original record thereof or the record on
appeal in those instances where the latter is required. The
latter aspect follows the former rule t h a t the motion for
discretionary execution and the special order granting the
same shall be included in the record on appeal.
457
If t h e t r i a l court h a s lost jurisdiction over t h e case by

reason of t h e perfection of t h e appeal from t h e j u d g m e n t
t h e r e i n , t h e motion for execution pending appeal may be
filed in the appropriate appellate court to which the original
record or the record on a p p e a l shall have consequently
been elevated.
2. In e i t h e r i n s t a n c e , a n d w h e t h e r it is a r e g u l a r
j u d g m e n t or a special j u d g m e n t such as a several, separate
or partial judgment, the same procedure and the
r e q u i r e m e n t of a special order s t a t i n g good reasons for
t h e discretionary execution shall be observed. See Note 3
u n d e r Sec. 4 of t h i s Rule, infra.
3. The Court of Appeals, h a s no a u t h o r i t y to issue

immediate execution p e n d i n g a p p e a l of its own decisions
therein. Discretionary execution is allowed pending
appeal of a j u d g m e n t or final order of t h e t r i a l court, upon
good r e a s o n s to be s t a t e d in a special order. A j u d g m e n t
of the Court of Appeals cannot be executed pending appeal.
Once final and executory, t h e j u d g m e n t on a p p e a l m u s t
be r e m a n d e d to t h e lower c o u r t , w h e r e a m o t i o n for
execution may be filed only after its e n t r y (Heirs of Justice
J.B.L. Reyes, etc., et al. vs. CA, et al., G.R. Nos. 135180-81
and 135425-26, Aug. 16, 2000).
T h i s s h o u l d n o t b e confused w i t h t h e p r o c e d u r e
outlined in t h e second p a r a g r a p h of Sec. 2(a) of t h e Rule
which governs discretionary execution of t h e decision of
t h e Regional Trial Court which is on a p p e a l in t h e Court
of Appeals and t h e t r i a l court h a s already lost jurisdiction
over t h e case.
S e c . 3. Stay of discretionary execution. — D i s -

cretionary execution issued under the preceding
section may be stayed upon approval by t h e proper
c o u r t of a s u f f i c i e n t s u p e r s e d e a s b o n d filed by t h e
party against w h o m it is directed, conditioned upon
the performance of the judgment or order allowed
458
to be e x e c u t e d in c a s e it s h a l l be finally s u s t a i n e d
i n w h o l e o r i n part. T h e bond t h u s g i v e n m a y b e
proceeded against on motion with notice to the
s u r e t y . (3a)
NOTES
1. T h i s is v i r t u a l l y t h e s a m e as in t h e f o r m e r
procedure except t h a t , with t h e clarification earlier noted
r e g a r d i n g t h e power of e i t h e r t h e court a quo or t h e
appellate court to allow discretionary execution under the
r e q u i r e m e n t s in t h e preceding section, the procedure for
t h e stay thereof w h e n s o u g h t in e i t h e r court and t h e
liability of the supersedeas bond shall be the same.
2. In American law from which our procedure hereon

was taken, a supersedeas is an auxiliary process designed
to s u p e r s e d e e n f o r c e m e n t of a t r i a l court's j u d g m e n t
brought up for review, and its application is limited to the
j u d g m e n t from which an appeal is taken (Mascot Pictures
Corp. vs. Municipal Court of City of Los Angeles, 3 Cal.
App. 2d 559, 40 P. 2d 272). In modern practice, the t e r m
is used synonymously with a "stay of proceedings," and
designates the effect of an act or proceeding which in itself
suspended the enforcement of a judgment (Dulinvs. Coal
Co., 26 Cal. 306, P. 123).
3. See, in this connection, Note 3 in the preliminary

considerations of Provisional Remedies, infra, regarding
t h e fixing of t h e lifetime of bonds in civil actions or
proceedings (A.M. No. 03-03-18-SC, effective Sept. 1,
2003).
S e c . 4. Judgments not stayed by appeal. —

J u d g m e n t s i n a c t i o n s for i n j u n c t i o n , r e c e i v e r s h i p ,
accounting and support, and such other judgments
as are now or may hereafter be declared to be
i m m e d i a t e l y e x e c u t o r y , s h a l l be e n f o r c e a b l e after
459
RULE 39 R E M E D I A L LAW COMPENDIUM SEC 4
their rendition and shall not be stayed by an appeal

taken therefrom, unless otherwise ordered by
the trial court. On appeal therefrom, the appellate
court in its d i s c r e t i o n may make an order
s u s p e n d i n g , modifying, r e s t o r i n g or g r a n t i n g the
injunction, receivership, accounting, or award of
support.
The stay of execution shall be upon such terms
as to bond or otherwise as may be considered proper
for t h e s e c u r i t y o r p r o t e c t i o n o f t h e r i g h t s o f t h e
a d v e r s e p a r t y . (4a)
NOTES
1. G e n e r a l l y , only j u d g m e n t s a n d final o r d e r s or
resolutions may be executed. The exceptions are orders
granting support pendente lite which can be executed even
if the main case is still p e n d i n g (Sec. 4, Rule 61), and
orders in injunction, receivership and accounting cases.
With respect to t h e latter, however, t h i s a m e n d e d Sec. 4
contemplates t h a t such directives are p u r s u a n t to a
j u d g m e n t , unlike t h e former section which referred to "a
j u d g m e n t or order directing an accounting in an action."
F o r t h a t m a t t e r , s u p p o r t pendente lite is c o n t a i n e d
generally in an interlocutory order and not a j u d g m e n t .
This imprecision in terminology may, however, be
disregarded, t h e i m p o r t a n t consideration being t h a t these
reliefs, as well as o t h e r s as may hereafter be so provided,
shall be enforceable upon t h e i r rendition a n d shall not be
stayed by an a p p e a l t a k e n therefrom, unless otherwise
ordered by t h e court.
2. Also, as a rule, execution shall issue only if the

j u d g m e n t has become executory, t h a t is, no motion for new
trial or reconsideration h a s been filed, nor h a s an appeal
or c e r t i o r a r i p r o c e e d i n g been t a k e n t h e r e f r o m . Some
j u d g m e n t s , however, are immediately executory by
provision of the Rules, even if an appeal h a s been taken
460
therefrom. Thus, under this section, judgments in actions

for injunction, receivership, accounting and support are
immediately executory and not stayed by an appeal, unless
o t h e r w i s e o r d e r e d . T h e s a m e is t r u e in t h e case of
j u d g m e n t s of inferior c o u r t s for t h e e j e c t m e n t of t h e
defendant (Sec. 19, Rule 70).
Hence, it has been held t h a t appeal does not stay the
e x e c u t i o n of a j u d g m e n t d e c r e e i n g d i s s o l u t i o n of a
preliminary injunction (Aguilar vs. Tan, et al., L-23600,
Jan. 30, 1970). This rule on the immediate execution of
a j u d g m e n t in an injunction case does not apply, however,
to a j u d g m e n t in an action for prohibition (Embroidery &
Apparel Control & Inspection Board vs. Cloribel,
June 20, 1967).
3. A j u d g m e n t in an action w h e r e i n a c c o u n t i n g
is ordered, as a p r i m a r y or incidental relief, is a final
a n d a p p e a l a b l e j u d g m e n t (Miranda vs. CA, et al.,
L-33007, June 18, 1976; Hernandez vs. CA, et al., G.R.
Nos. 61420-21, Feb. 22, 1983 and cases therein cited). The
general rule in partition t h a t an appeal will not lie until
the partition and distribution proceedings are terminated
does not apply w h e r e t h e a p p e l l a n t claims exclusive
ownership of the whole property and denies the adverse
p a r t y ' s r i g h t to a n y p a r t i t i o n (Garbo vs. CA, et al.,
L-39384, June 22, 1984).
4. Even before the judgment has become executory

and before appeal was perfected, the court, in its discretion,
may order execution upon good reasons to be stated in a
special order, such as:
(a) Where the lapse of time would make the ultimate
j u d g m e n t ineffective, as where the debtors were
withdrawing their business and assets from the country
(Scottish Union & National Insurance Co., et al. vs.
Macadaeg, et al., 91 Phil. 891);
461
(b) Where t h e appeal is clearly dilatory (Rodriguez,

et al. vs. CA, et al., 105 Phil. 777; De Vera vs. Santos,
L-24351, Sept. 22, 1977);
(c) W h e r e t h e j u d g m e n t i s for s u p p o r t a n d t h e
beneficiary is in need thereof (Javier vs. Lucero, et al.,
94 Phil. 634);
(d) W h e r e t h e a r t i c l e s subject of t h e case would
d e t e r i o r a t e (Federation, etc. vs. NAMARCO, L-17819 and
L-17768, Mar. 31, 1962), hence, u n d e r Sec. 15(a) of this
Rule, t h e court can j u s t fix t h e time for notice of execution
sale of perishable property;
(e) W h e r e defendants a r e e x h a u s t i n g t h e i r income
a n d have no o t h e r property aside from t h e proceeds from
t h e subdivision lots subject of t h e action (Lao vs. Mencias,
L-23554, Nov. 25, 1967);
(f) Where the j u d g m e n t debtor is in imminent danger
of insolvency (Santos vs. Mojica, L-24266, Jan. 24, 1969)
or is a c t u a l l y i n s o l v e n t (Padilla, et al. vs. CA, et al.,
L-31569, Sept. 28, 1973);
(g) W h e r e t h e prevailing p a r t y is of advanced age
a n d in a p r e c a r i o u s s t a t e of health, a n d t h e obligation in
t h e j u d g m e n t is non-transmissible, being for s u p p o r t (De
Leon, et al. vs. Soriano, et al., 95 Phil. 806; cf. Far East
Bank, etc. vs. Toh, Sr., et al, G.R. No. 144018, June 23,
2003);
(h) Where t h e r e is uncontradicted evidence showing
t h a t , in order to house machineries which they were forced
to place on a public street, movants were in e x t r e m e need
of t h e p r e m i s e s subject of t h e s u i t a n d t h e possession
whereof was adjudged to t h e m in t h e t r i a l court's decision,
a n d the corresponding bond to a n s w e r for d a m a g e s in case
of r e v e r s a l on a p p e a l h a d been posted by t h e m (Lu vs.
Valeriano, G.R. No. 51001, Jan. 18, 1982); or
(i) Where t h e case involved escrow deposits and the
p r e v a i l i n g p a r t y p o s t s sufficient bond t o a n s w e r for
462
d a m a g e s in c a s e of r e v e r s a l of t h e j u d g m e n t (Hda.
Navarra, Inc. vs. Labrador, et al., 65 Phil. 536; cf. PVTA
vs. Lucero, et al., L-32550, Oct. 27, 1983).
(1) H o w e v e r , in Belfast Surety & Insurance
Co., Inc. vs. Solidum, et al. (CA-G.R. No. 40304-R,
Nov. 4, 1970, 67 O.G. No. 36, p. 7034), t h e Court
of Appeals held t h a t the mere filing of a bond is not
a good reason for t h e execution of a money judgment
pending appeal. It distinguished this situation from
the Navarra case wherein the money was deposited
with t h e bank in escrow, hence its withdrawal under
t h e security of a bond filed by the prevailing party
would not result in any damage to the depositor.
(2) T h e r e a f t e r , in Roxas vs CA, et al. (G.R.
No. 56960, J a n . 28, 1988), the Supreme Court clarified
its decisions wherein some s t a t e m e n t s made therein
g e n e r a t e d t h e perception t h a t t h e filing of a bond
by the successful p a r t y is a good reason for ordering
execution pending appeal, by calling attention to the
factual context in which such orders were allowed.
T h u s , in City of Manila vs. CA, et al. (L-35253,
J u l y 26, 1976), t h e City of M a n i l a h a d o b t a i n e d
j u d g m e n t for recovery of a parcel of land it had lent
to the Metropolitan Theater. Since said defendant
was insolvent and there was imminent danger t h a t
its creditor would foreclose the mortgage t h a t it had
theretofore constituted on the property, such
circumstances impelled the grant of immediate
e x e c u t i o n a n d t h e r e q u i r e m e n t of a bond by t h e
plaintiff was imposed merely as an additional
m e a s u r e for the protection of defendant's creditor. In
Hda. Navarra, Inc. vs. Labrador, et al., supra, the
special reason for immediate execution, and not merely
the posting of a bond, was to insure its receipt by the
party obtaining a favorable judgment in the civil case
therein, and the posting of a bond for delivery of said
proceeds secures such receipt by the prevailing party.
463
In People's Bank & Trust Co. vs. San Jose, et al. (96
Phil. 895), i m m e d i a t e execution w a s allowed for the
p a y m e n t of s u p p o r t of an h e i r of t h e e s t a t e u n d e r
a d m i n i s t r a t i o n , and his u r g e n t need therefor, not the
filing of t h e bond, w a s t h e p a r a m o u n t consideration
for such order. To consider t h e m e r e posting of a bond
as a "good r e a s o n " for i m m e d i a t e e x e c u t i o n of
j u d g m e n t s p e n d i n g a p p e a l would become routinary,
or the rule r a t h e r t h a n the exception, and this
situation is not contemplated or intended in t h e Rules.
5. While insolvency of t h e j u d g m e n t debtor or

i m m i n e n t d a n g e r t h e r e o f h a s b e e n c o n s i d e r e d a good
reason for discretionary execution, t h a t rule does not apply
w h e r e , a s s u m i n g t h a t one o f t h e j u d g m e n t d e b t o r s i s
insolvent, t h e o t h e r j u d g m e n t co-debtor is not and, u n d e r
t h e t e r m s of t h e j u d g m e n t , t h e liability of t h e l a t t e r is
either subsidiary to or solidary with the former (Philippine
National Bank vs. Puno, et al., G.R. No. 76018,
Feb. 10, 1989).
6. Certiorari lies against an order g r a n t i n g execution

p e n d i n g a p p e a l w h e r e t h e s a m e is not founded upon good
r e a s o n s . The fact t h a t t h e losing p a r t y h a d also appealed
from t h e j u d g m e n t does not b a r t h e c e r t i o r a r i proceed-
ings as t h e a p p e a l could not be an a d e q u a t e remedy from
such p r e m a t u r e execution (Jaca vs. Davao Lumber Co.,
L-25771, Mar. 29, 1982).
The dismissal of t h e special civil action for certiorari
a s s a i l i n g t h e o r d e r a quo d i r e c t i n g execution p e n d i n g
a p p e a l of a specific p o r t i o n of t h e j u d g m e n t d o e s . n o t
preclude e i t h e r t h e a p p e l l a n t from appealing t h e e n t i r e t y
of t h e j u d g m e n t or t h e s a m e appellate court from passing
upon the merits of the entire appealed judgment
(Silverio vs. CA, et al., L-39861, Mar. 17, 1986).
7. To p r e v e n t execution pending appeal, the losing

p a r t y m u s t post a s u p e r s e d e a s bond to a n s w e r for such
464
RULE 39 EXECUTION, SATISFACTION SEC 4
damages as may be awarded by the appellate court or for

the performance of the judgment appealed from in case of
affirmance on appeal. However, the filing of supersedeas
bond does not entitle the judgment debtor to the suspension
of execution as a m a t t e r of right (NAW ASA vs. Catolico,
L-21705 a n d L-24327, April 27, 1967; City of Manila
vs. CA, et al., L-35253, July 26, 1976). Hence, where the
needs of the prevailing party are urgent, the court can
order immediate execution despite such supersedeas bond
(De Leon, et al. vs. Soriano, supra).
8. The motion for immediate execution must be filed

before t h e c o u r t a p p r o v e s t h e record on a p p e a l and,
formerly, t h e appeal bond, where such were required,
because upon such approval, the appeal is deemed
perfected and the trial court loses jurisdiction over the
subject matter, except to issue orders for the protection
and p r e s e r v a t i o n of t h e r i g h t s of t h e p a r t i e s (Sec. 9,
Rule 41; De Leon vs. De los Santos, 79 Phil. 461). An
order for immediate execution is not within the exception
as it affects t h e r i g h t s of the p a r t i e s which a r e to be
determined on appeal (Abrasaldo, et al. vs. Fernandez, et
al., 97 Phil. 964). As implied in the former Sec. 2, a special
order for immediate execution must be included in the
record on appeal, thereby presupposing that the record
on appeal has not yet been approved. However, these
consideration do not apply to the issuance and enforcement
of alias writs where the original writ had been issued prior
to the approval of the record on appeal and appeal bond
(NCBNY vs. Tiaoqui, 100 Phil. 1104).
Since u n d e r B.P. Blg. 129 appeal is now generally
taken by merely filing a notice of appeal, it was then held
t h a t the motion for immediate execution should be filed
before the notice is filed and the appeal given due course
by the trial court, the perfection of appeal in such case
being the lapse of the last day for all parties to appeal
(Sec. 23, Interim Rules). See Universal Far East Corp.
466
vs. CA, et al. (G.R. No. 64931, Aug. 3 1 , 1984) holding t h a t

as long as s u c h m o t i o n is filed before t h e a p p e a l is
perfected, t h e w r i t may issue after t h e period for appeal.
In Yabut vs. IAC, et al. ( G . R . N o . 6 9 2 0 8 ,
May 28, 1986), r e s p o n d e n t s received a copy of t h e decision
on J u l y 23, 1984, and they appealed t h e following day.
Petitioner, on t h e other h a n d , received his copy of said
decision on J u l y 20, 1984 and filed a motion for execution
p e n d i n g a p p e a l o n J u l y 25, 1984. S a i d m o t i o n w a s
seasonably filed as t h e a p p e a l of t h e r e s p o n d e n t was not
perfected on t h e day they filed t h e i r notice of a p p e a l but
on t h e e x p i r a t i o n of t h e l a s t day to appeal, which was
A u g u s t 7, 1984 (cf. Montelibano vs. Bacolod-Murcia
Milling Co., Inc., G.R. No. 69800, May 7, 1985; Belgado
vs. IAC, et al., G.R. No. 74975, Jan. 12, 1987). See,
however, t h e a m e n d e d Sec. 9 of Rule 41 with the
modifications and clarifications on this matter, as
explained t h e r e i n .
9. W h e r e from t h e decision of a n d t h e evidence

p r e s e n t e d before t h e t r i a l court, t h e j u d g m e n t creditor is
clearly entitled to a c t u a l d a m a g e s , t h e s a m e can be the
subject of execution p e n d i n g a p p e a l , b u t not t h e other
a w a r d s for moral a n d exemplary d a m a g e s a n d attorney's
fees (RCPI vs. CA, et al., G.R. No. 59311, Jan. 31, 1985;
Engineering Construction, Inc. vs. NFC, L-34589,
June 29, 1988).
10. The surety is charged u n d e r the supersedeas bond

upon t h e t e r m i n a t i o n of t h e case on a p p e a l and t h e bond
m a y be e x e c u t e d on motion, u n l i k e t h e p r o c e d u r e for
recovery of d a m a g e s from b o n d s in a t t a c h m e n t or in-
junction which is governed by Sec. 20, Rule 58 (Apacheche,
et al. vs. Rovira, et al., L-28454, May 18, 1978).
1 1 . An o r d e r for execution of a j u d g m e n t pending
a p p e a l c a n be enforced on a c o u n t e r - b o n d which was
posted to lift t h e w r i t of p r e l i m i n a r y a t t a c h m e n t issued by
466
the trial court. Secs. 5 and 12 of Rule 57 provide t h a t

said counter-bond shall respond for any judgment in the
action and not only for a final and executory judgment
(Phil. British Association Co., Inc. vs. IAC, et al., G R
No. 72005, May 29, 1987).
S e c . 5. Effect of reversal of executed judgment. —

Where the executed judgment is reversed totally or
partially, or annulled, on appeal or otherwise, the
trial court may, on motion, issue such orders of
restitution or reparation as equity and justice may
w a r r a n t u n d e r t h e c i r c u m s t a n c e s . (5a)
NOTES
1. This section has been amended to include within

its purview the situation wherein the judgment was not
only reversed but actually annulled (see Rule 47) and to
p r o v i d e , by w a y of relief, for e i t h e r r e s t i t u t i o n or
reparation.
2. On reversal, the property itself must be returned
to the judgment debtor, if the same is still in the possession
of the judgment creditor, plus compensation to the former
for the deprivation and use of the property. This can be
effected by motion to the trial court.
3. If restitution is not possible, then compensation
should be made as follows:
a. If the p u r c h a s e r at the public auction was the
j u d g m e n t creditor, he m u s t pay t h e full value of t h e
property at the time of its seizure, plus interest thereon;
b. If t h e p u r c h a s e r at public auction was a third
person, t h e j u d g m e n t creditor m u s t pay the j u d g m e n t
debtor the amount realized from the sale of said property
at the sheriffs sale, with interest thereon; and
467
c. If t h e j u d g m e n t a w a r d was reduced on appeal,

t h e j u d g m e n t creditor m u s t r e t u r n to t h e j u d g m e n t debtor
only t h e excess which he received over and above t h a t to
which he is entitled u n d e r the final judgment, with interest
on such excess (Po Pauco vs. Tan Juco, 49 Phil. 349).
Sec. 6. Execution by motion or by independent

action. — A final a n d e x e c u t o r y j u d g m e n t or o r d e r
m a y b e e x e c u t e d o n m o t i o n w i t h i n five (5) y e a r s
f r o m t h e d a t e o f i t s e n t r y . After t h e l a p s e o f s u c h
time, and before it is barred by the statute of
l i m i t a t i o n s , a j u d g m e n t m a y be e n f o r c e d by a c t i o n .
The revived judgment may also be enforced by
m o t i o n w i t h i n (5) y e a r s f r o m t h e d a t e o f i t s e n t r y
and thereafter by action before it is barred by the
s t a t u t e o f l i m i t a t i o n s . (6a)
NOTES
1. This a m e n d e d section introduced two i m p o r t a n t

changes to the former doctrinal rules: (1) While the former
section provided t h a t the 5-year period was to be computed
from t h e d a t e of t h e e n t r y of t h e j u d g m e n t "or from the
date it becomes final and executory," the second
a l t e r n a t i v e has been eliminated. This is a consequence
of t h e a m e n d m e n t of Sec. 2 of Rule 36 to t h e effect t h a t
"(t)he date of t h e finality of t h e j u d g m e n t or final order
shall be deemed to be the date of its entry," t h u s
a b a n d o n i n g t h e doctrine in Munez, et al. vs. CA, et al.
(L-46040, J u l y 23, 1987) and similar holdings. (2) The
last sentence of t h i s section also sets aside t h e ruling in
Luzon Surety Co., Inc. vs. IAC, et al., infra., as shall
hereafter be discussed.
2. The 5-year period is to be counted not from the

date the j u d g m e n t became final in the sense t h a t no appeal
could be t a k e n therefrom b u t w h e n it became executory
in t h e sense t h a t it could already be enforced (Tan Ching
468
Ji vs. Mapalo, et al, L-21933, Feb. 22, 1971), i.e., from

the date of its entry.
3. Within 5 years from entry of the judgment, the

prevailing party can secure its execution by merely filing
motions for such writs of execution as may be necessary
to enforce the judgment. If a writ of execution was issued
and levy made on the property within the 5-year period,
the sale of the property thereafter will be valid provided
it is made within the 10-year period (Quiambao vs. Manila
Motor Co., L-17384, Oct. 31, 1961; Del Rosario vs. Yatco,
L-18375, Dec. 29, 1966; Jalandoni, et al. vs. PNB, et al.,
L-47579, Oct. 9, 1981). If no levy was made within the
5-year period, the writ of execution may no longer be
enforced even if it was issued within the 5-year period.
4. Failure to object to a writ of execution issued after
5 years from final judgment does not validate the writ, as
the question of jurisdiction of the court is involved and
jurisdiction cannot be conferred by the will of the parties
(Ramos vs. Garciano, L-22341, April 29, 1969; Sabulao
vs. Delos Angeles, et al, L 29317, May 29, 1971).
5. However, where the execution was withheld due

to t h e financial difficulties of the debtor (Lancita vs.
Magbanua, L-15467, Jan. 31, 1963), or was suspended
by agreement of the parties (Torralba vs. De los Angeles,
L-27592, Feb. 14, 1980), e s p e c i a l l y if it w a s w i t h
court approval (Manila Railroad Co. vs. CIR, L-18389,
Jan. 31, 1963), as w h e r e t h e compromise a g r e e m e n t
approved by the court provided t h a t the judgment debtor
was given 6 years from rendition of the judgment within
which to pay the judgment account (Tan Ching Ji vs.
Mapalo, et al, supra), or was not carried out due to the
repealed refusal or failure of the sheriff to enforce the
same (Lancita vs. Magbanua, supra), or was suspended
by order of the court (Casela vs. CA, et al, L-26754,
Oct. 16, 1970), or was interrupted by the filing of a motion
469
for e x a m i n a t i o n of t h e j u d g m e n t debtor a n d an action for

m a n d a m u s by t h e j u d g m e n t c r e d i t o r (Potenciano vs.
Mariano, et al., L-30904, Mar. 6, 1980), t h e 5-year period
may be proportionately extended (Bien, et al. vs. Sunga,
et al., L-39644, Sept. 30, 1982). Hence, w h e r e t h e delay
in t h e execution of t h e j u d g m e n t for more t h a n 8 years
was due to t h e acts of t h e j u d g m e n t debtor, t h e S u p r e m e
Court held t h a t t h e motion for alias w r i t s of execution and
for d e m o l i t i o n c o n s t i t u t e , in effect, a r e v i v a l of t h e
j u d g m e n t u n d e r Sec. 6 of Rule 39 (David vs. Ejercito, et
al, L-41334, June 18, 1976; see De la Rosa vs. Fernandez,
etc., et al, L-46127, April 18, 1980); Yau vs. Silverio, Sr.,
G.R. No. 158848, Feb. 4, 2008).
Also, w h e r e t h e j u d g m e n t creditors had complied with
virtually all t h e r e q u i r e m e n t s , made in piecemeal fashion
by t h e Commission on Audit, for t h e p a y m e n t to t h e m by
t h e d e f e n d a n t province of t h e j u d g m e n t account b u t which
still r e m a i n e d u n p a i d after 8 y e a r s from finality of the
j u d g m e n t , t h e S u p r e m e C o u r t held t h a t s a i d 8 y e a r s
should not be included in computing t h e 5-year period to
execute a j u d g m e n t by motion. The delay was t h r o u g h
no fault of t h e j u d g m e n t creditor b u t w a s i m p u t a b l e to
t h e g o v e r n m e n t a l a g e n c i e s i n v o l v e d (Prov. Gov't of
Sorsogon vs. Villaroya, et al, G.R. No. 64037, Aug. 27,
1987). Q u o t i n g from Republic vs. CA, et al. (L-43179,
J u n e 27, 1985), t h e S u p r e m e Court r e i t e r a t e d t h a t :
"In computing t h e time limited for suing out an
execution, although t h e r e is a u t h o r i t y to t h e contrary,
t h e g e n e r a l rule is t h a t t h e r e should not be included
the time when execution is stayed, either by agreement
of t h e p a r t i e s for a definite time, by injunction, by
t h e t a k i n g of an appeal or writ of error so as to operate
as a s u p e r s e d e a s , by t h e d e a t h of t h e p a r t y or
otherwise. Any interruption or delay occasioned by
the debtor will extend the time within which the writ
may be issued without scire facias."
470
6. After 5 years and within 10 years from e n t r y of

the j u d g m e n t , such j u d g m e n t becomes a mere r i g h t of
action and if unsatisfied, t h e prevailing p a r t y can file an
action for revival of j u d g m e n t (PNB vs. Perez, et al,
L-20412, Feb. 28, 1966; Continental Bank vs. Tiangco,
G.R. No. 50480, Dec. 14, 1979). The venue of such action
is subject to t h e g e n e r a l rules of venue in light of t h e
present circumstances of the parties (Aldeguer vs. Gemelo,
68 Phil. 421). T h a t action for revival is subject to such
defenses as may have arisen during t h e interim (see Cia.
General de Tabacos vs. Martinez, et al., 29 Phil. 515). The
10-year period for revival of j u d g m e n t is counted from
the date of its finality (PNB vs. Deloso, L-28301, Mar. 30,
1970) w h i c h is now d e e m e d to be t h e d a t e of e n t r y .
However, if it is a j u d g m e n t based upon a compromise
which is immediately final and executory, prescription runs
from the date of its rendition and not from the date of
e n t r y (Jacinto, etc. vs. IAC, et al., G.R. No. 66478,
Aug. 28, 1988). If an a m e n d a t o r y a n d "clarificatory"
j u d g m e n t was rendered, it is from t h e date of the entry
thereof t h a t the 10-year period is reckoned (Sta. Romana
vs. Lacson, L-27754, April 8, 1981). For this purpose, a
y e a r s h o u l d b e c o m p u t e d a s c o n s i s t i n g o f 365 d a y s
(Art. 13, Civil Code); hence if leap y e a r s a r e involved,
each leap year should be reckoned as consisting of 366
d a y s (National Marketing Corp. vs. Tecson, et al.,
L 29131, Aug. 27, 1969).
7. An action to revive a judgment is a personal one

and not quasi in rem (Aldeguer vs. Gemelo, et al., supra;
Donelly vs. CFI of Manila, et al, L-31209, April 11, 1972).
8. T h i s section does not apply to j u d g m e n t s for
s u p p o r t which do not become d o r m a n t and which can
always be executed by motion (Canonizado vs. Benitez,
etc., et al, L 49315 and G.R. No. 60966, Feb. 20, 1984),
except those for support in a r r e a r s beyond ten years from
the date they become due (Florendo vs. Organo, 90 Phil.
483; Velayo vs. Velayo, L-23538, July 21, 1967). It does
471
not apply to c o n t e m p t o r d e r s by r e a s o n of u n a u t h o r i z e d
r e e n t r y on t h e land by t h e ejected d e f e n d a n t (Azotes vs.
Blanco, 85 Phil. 90), or for t h e i s s u a n c e of w r i t s of
p o s s e s s i o n in foreclosure c a s e s w i t h i n t h e s t a t u t e of
l i m i t a t i o n s (Ramos vs. Mahalac, 89 Phil. 270). N e i t h e r
is t h i s section applicable to special proceedings, such as
land r e g i s t r a t i o n cases, hence t h e r i g h t to a s k for a writ
of possession t h e r e i n n e v e r prescribes (Rodil, et al. vs.
Benedicto, et al., L-28616, Jan. 22, 1980; cf. Heirs of
Cristobal Marcos vs. De Banuvar, et al., L-22110,
Sept. 28, 1968; Sta. Ana vs. Menla, L-15564, April 28,
1961); Republic vs. Nillas, G.R. No. 159395, Jan. 23, 2007).
9. It h a s been held t h a t Art. 1155 of t h e Civil Code,

which provides t h a t the prescription of actions is
i n t e r r u p t e d w h e n they a r e filed with t h e court or when
t h e r e is a w r i t t e n extrajudicial d e m a n d by t h e creditors or
a w r i t t e n acknowledgment of t h e debt by t h e debtors, does
not apply to actions to revive a d o r m a n t j u d g m e n t (PNB
vs. Deloso, supra), b u t only to actions to collect not based
upon a j u d g m e n t .
However, it w a s l a t e r held t h a t t h e filing of a first
revival action w i t h i n t h e 10-year period u n d e r Sec. 6 of
this Rule tolls t h e r u n n i n g thereof a n d such i n t e r r u p t i o n
lasts during the pendency of said action. When such action
was dismissed for failure of s u m m o n s and a second revival
action was again filed within t h e balance of said period,
after d e d u c t i n g t h e period of i n t e r r u p t i o n , t h e second
action was still seasonably filed. Art. 1155 of t h e Civil
Code, which provides t h a t t h e prescription of actions is
i n t e r r u p t e d w h e n they a r e filed in court, is unqualified.
U n d e r t h i s view, t h e cases oiConspecto vs. Fruto (31 Phil.
148) a n d Oriental Commercial Co., Inc. vs Jureidini (71
Phil. 25), which held t h a t t h e effect of a revival action
upon t h e 10-year period depends on w h e t h e r the dismissal
was due to p l a i n t i f f s a b a n d o n m e n t or not, a r e now of
doubtful applicability (Board of Liquidators vs. Zulueta,
L-30738, July 30, 1982).
472
10. In Luzon Surety Co., Inc. vs. IAC, et al. (G.R.

No. 72645, J u n e 30, 1987), the question was raised as to
w h e t h e r a j u d g m e n t creditor who failed to enforce t h e
original j u d g m e n t is entitled to revive said j u d g m e n t only
once, in view of t h e provisions of Sec. 6 of this Rule in
relation to Art. 1144(3) of the Civil Code which requires
t h a t actions upon j u d g m e n t s "must be brought within ten
y e a r s from t h e time t h e right of action accrues." The
Supreme Court took note of its earlier ruling in PNB vs.
Bondoc (L-20236, July 30, 1965) where it answered the
question in t h e negative, holding t h a t Sec. 6 of this Rule
makes no distinction as to the kind of j u d g m e n t which
may be r e v i v e d by o r d i n a r y i n d e p e n d e n t a c t i o n . It,
therefore, ruled t h e r e i n t h a t a j u d g m e n t rendered in an
action for t h e revival of a previous unsatisfied j u d g m e n t
is a new j u d g m e n t in itself; hence if it could not be enforced
within the first five years from its finality, a second revival
action may be resorted to within the succeeding five years
to revive said second judgment.
However, it decided to abandon said doctrine and
adopt as t h e b e t t e r view t h a t in the subsequent case of
PNB vs. Deloso, supra, which held t h a t the ten-year period
is to be reckoned from the finality of the original judgment;
hence, if w i t h i n t h a t period a j u d g m e n t reviving t h e
original judgment was obtained but again remained
unsatisfied, a second revival action beyond the prescriptive
ten-year period is not allowed. The effect of the judgment
in such first revival action is only to grant the judgment
creditor another period of five years to execute the said
judgment by mere motion, failing which a second revival
action can no longer be instituted.
With the adoption of the last sentence in this amended
Sec. 6, the foregoing seesawing decisions have been laid
to rest. J u s t like the rule on an original judgment, the
revived j u d g m e n t may now also be enforced by motion
within 5 years from the date of its entry and, thereafter,
by filing a n o t h e r revival action should it again become
473
d o r m a n t , p r o v i d e d i t i s filed w i t h i n t h e s t a t u t e o f
limitations. T h a t second revived j u d g m e n t can also be
enforced in t h e s a m e m a n n e r as t h e original j u d g m e n t
and in accordance with t h e provisions of Sec. 6.
S e c . 7. Execution in case of death of party. — In

case of the death of a party, execution may issue or
be enforced in the following manner:
(a) I n c a s e o f t h e d e a t h o f t h e j u d g m e n t
obligee, upon the application of his executor or
administrator, or successor in interest;
(b) I n c a s e o f t h e d e a t h o f t h e j u d g m e n t
obligor, against his executor or administrator or
s u c c e s s o r i n i n t e r e s t , i f t h e j u d g m e n t b e for t h e
recovery of real or personal property, or the
e n f o r c e m e n t of a l i e n t h e r e o n ;
(c) I n c a s e o f t h e d e a t h o f t h e j u d g m e n t
obligor, after e x e c u t i o n is actually levied u p o n any
o f h i s p r o p e r t y , t h e s a m e m a y b e s o l d for t h e
satisfaction of the judgment obligation, and the
officer m a k i n g the sale shall account to the
c o r r e s p o n d i n g e x e c u t o r o r a d m i n i s t r a t o r for a n y
s u r p l u s i n h i s h a n d s . (7a)
NOTES
1. P a r . (b) applies w h e r e t h e j u d g m e n t obligor dies

after t h e e n t r y of the j u d g m e n t or order which, of
course, h a s become final a n d executory. If he dies before
such e n t r y in t h e court w h e r e i n t h e action is pending,
a n d t h e a c t i o n is for a c o n t r a c t u a l money claim, t h e
a m e n d e d rule is t h a t it will not be dismissed but shall
continue u n t i l e n t r y of final j u d g m e n t . If it is a favorable
j u d g m e n t , it m a y be enforced as a claim a g a i n s t t h e
debtor's e s t a t e (Sec. 20, Rule 3).
474
2. If the j u d g m e n t obligor dies after t h e e n t r y of

j u d g m e n t but before levy on his property, execution will
issue if it be for t h e recovery of real or personal property.
However, if the j u d g m e n t is for a sum of money, a n d the
j u d g m e n t obligor dies before levy h a s b e e n m a d e on
his property, such j u d g m e n t cannot be enforced by w r i t of
e x e c u t i o n b u t m u s t b e filed a s a c l a i m a g a i n s t h i s
e s t a t e (see Sec. 5, Rule 86; Paredes vs. Moya, L-38051,
Dec. 26, 1974). If he dies after levy has been made, the
execution sale may proceed. It is the actual date of levy
on execution which is t h e cutoff date fsee Evangelista vs.
La Proveedora, Inc., et al., L-32834, Mar. 31, 1971).
S e c . 8. Issuance, form and contents of a writ of

execution. — T h e w r i t of e x e c u t i o n shall: (1) i s s u e in
t h e n a m e o f t h e R e p u b l i c o f t h e P h i l i p p i n e s from
t h e c o u r t w h i c h g r a n t e d t h e m o t i o n ; (2) s t a t e t h e
name of the court, the case number and title, the
d i s p o s i t i v e p a r t o f t h e s u b j e c t j u d g m e n t o r order;
a n d (3) r e q u i r e t h e s h e r i f f o r o t h e r p r o p e r officer t o
w h o m it is directed to enforce the writ according to
its t e r m s , i n t h e m a n n e r h e r e i n a f t e r p r o v i d e d :
(a) I f t h e e x e c u t i o n b e a g a i n s t t h e p r o p e r t y o f
t h e j u d g m e n t o b l i g o r , t o satisfy t h e j u d g m e n t , w i t h
i n t e r e s t , o u t o f t h e real o r p e r s o n a l p r o p e r t y o f s u c h
j u d g m e n t obligor;
(b) If it be a g a i n s t real or p e r s o n a l p r o p e r t y
in the hands of personal representatives, heirs,
devisees, legatees, tenants, or trustees of the
j u d g m e n t obligor, to satisfy the judgment, with
i n t e r e s t , o u t o f s u c h property;
(c) I f i t b e for t h e s a l e o f r e a l o r p e r s o n a l
p r o p e r t y , t o sell s u c h p r o p e r t y , d e s c r i b i n g it, a n d
apply t h e p r o c e e d s i n conformity w i t h t h e j u d g m e n t ,
the material parts of which shall be recited in the
writ of execution;
475
(d) If it be for t h e d e l i v e r y of t h e p o s s e s s i o n of
real or personal property, to deliver the possession
o f t h e s a m e , d e s c r i b i n g it, t o t h e p a r t y e n t i t l e d
thereto, and to satisfy any costs, d a m a g e s , rents, or
profits covered by the j u d g m e n t out of the personal
property of the person against wh om it was
rendered, and if sufficient personal property cannot
be found, then out of the real property; and
(e) I n a l l c a s e s , t h e w r i t o f e x e c u t i o n s h a l l
specifically state the amount of the interest,
costs, d a m a g e s , rents, or profits due as of the
date of the issuance of the writ, aside from the
principal obligation under the judgment. For this
p u r p o s e , t h e m o t i o n for e x e c u t i o n s h a l l s p e c i f y
the amounts of the foregoing reliefs sought by
t h e m o v a n t . (8a)
NOTES
1. This a m e n d e d section now r e q u i r e s , obviously to

avoid erroneous implementation, t h a t t h e writ of execution
should s t a t e t h e dispositive p a r t of t h e j u d g m e n t or order,
instead of j u s t t h e " m a t e r i a l p a r t s t h e r e o f as provided in
t h e former section.
For t h e s a m e reason, par. (e) thereof f u r t h e r requires
t h a t t h e writ should specifically s t a t e t h e a m o u n t of the
interest, costs, d a m a g e s , r e n t s or profits due as of t h e date
of its issuance. For such purpose, the movant shall specify
t h e a m o u n t s of said reliefs in his motion for t h e issuance
of t h e writ. J u d i c i a l experience h a s shown t h a t in some
cases, leaving t h e c o m p u t a t i o n of said a m o u n t s to the
sheriff has been productive of mischief and controversy.
2. Also, while the former rule was t h a t the

satisfaction of t h e j u d g m e n t m u s t be c a r r i e d out first
t h r o u g h the personal property, and t h e n t h e real property,
476
of the j u d g m e n t obligor, t h a t procedure is now specifically

provided only in par. (d) of this section, t h a t is, where the
judgment is for t h e delivery of the possession of real or
personal property and there is a need to sell some other
property of the j u d g m e n t obligor to satisfy costs, damages,
rents or profits covered by the judgment.
The reason for this change is to afford the j u d g m e n t
obligor an element of choice as to which of his properties
may be proceeded against to satisfy the judgment, as some
personal p r o p e r t i e s may be of more s e n t i m e n t a l ,
commercial or o t h e r value to him for his present or future
purposes. T h u s , u n d e r par. (b) of t h e next succeeding
section, while t h e sheriff may levy upon the properties of
the j u d g m e n t obligor of any kind and n a t u r e not exempt
from execution, he m u s t first give the latter the option to
choose which property or p a r t thereof may be levied upon,
sufficient to satisfy the judgment.
3. T h e former section provided t h a t t h e w r i t of

execution m u s t issue from the court in which the judgment
or order was entered. Sec. 2, Rule 36 requires the entry
of j u d g m e n t to be made if neither an appeal therefrom
nor a motion for new t r i a l is seasonably filed, thereby
presupposing t h a t the judgment to be entered is t h a t of
the court which tried the case, t h a t is, the court of original
jurisdiction. It has, accordingly, been held t h a t the then
Court of First Instance of Laguna was not empowered to
issue an alias writ of execution to enforce a judgment by
the t h e n Justice of the Peace Court of Calamba, and only
the latter can issue the writ of execution (Arambulo vs.
CA, et al., L-15669, Feb. 28, 1962).
Consequently, in view of divergent practices of some
trial courts, where the judgment of the municipal trial court
was appealed to the Regional Trial Court and the decision
of the latter was elevated to the Court of Appeals whose
decision thereafter became final, said ultimate decision
should be remanded through the Regional Trial Court to
477
the inferior court for execution. The municipal trial court,

as the court of origin and which took cognizance of the
case in t h e exercise of original jurisdiction, is the court
a u t h o r i z e d to issue t h e w r i t of execution, and not the
Regional Trial Court which participated in the proceedings
in an appellate capacity.
These observations are not affected by the fact that,
as amended, the p r e s e n t section s t a t e s t h a t the writ of
execution "shall issue from the court which granted the
motion." Such t e x t u a l change is intended to encompass
t h e m a t t e r of discretionary execution in Sec. 2 of this
Rule since, in execution pending appeal under the
circumstances t h e r e i n contemplated, t h e writ of execution
may be sought in or issued e i t h e r by t h e trial court or the
a p p e l l a t e court. However, in execution as a m a t t e r of
right, which is w h a t is contemplated in this section under
discussion, the writ of execution must of necessity be issued
by t h e court w h e r e t h e j u d g m e n t or order was entered,
t h a t is, the court of origin.
4. A w r i t of e x e c u t i o n m u s t c o n f o r m w i t h t h e
j u d g m e n t a n d if it is d i f f e r e n t from or e x c e e d s t h e
t e r m s of t h e j u d g m e n t , it is a nullity (Villoria us. Piccio,
et al., 95 Phil. 802) a n d m a y be q u a s h e d on motion
(Vda. de Dimayuga us. Raymundo, et al., 76 Phil. 143),
and a p p e a l may be t a k e n from a denial of said motion
(Romero, et al. us. CA, et al., L-39659, July 30, 1971, where
it was held t h a t certiorari could even be availed of as the
court a quo had issued a w r i t of possession in excess of
its jurisdiction). A w r i t of execution is void when issued
for a g r e a t e r s u m t h a n is w a r r a n t e d by t h e j u d g m e n t or
is for t h e original a m o u n t of the j u d g m e n t despite partial
p a y m e n t thereof. The exact a m o u n t due cannot be left
to t h e d e t e r m i n a t i o n of t h e sheriff (Windor Steel Mfg.
Co., Inc. us. CA, et al., L-34332, Jan. 27, 1981).
5. While t h e general rule is t h a t the portion of the

decision t h a t becomes subject of execution is t h a t ordained
478
o r d e c r e e d i n t h e dispositive p a r t thereof, t h e r e a r e
e x c e p t i o n s , viz.: (a) w h e r e t h e r e i s a m b i g u i t y o r
uncertainty, the body of t h e opinion may be referred to
for p u r p o s e s of c o n s t r u i n g t h e j u d g m e n t b e c a u s e t h e
dispositive p a r t of a decision must find support from the
decision's ratio decidendi; and (b) where extensive and
explicit discussion and settlement of the issue is found in
the body of the decision (Ong Ching Kian Chung, et al.
vs. China National Cereal Oil and Foodstuffs Import and
Export Corp., et al., G.R. No. 131502, June 8, 2000;
Intramuros Tennis Club, Inc., et al. vs. Phil. Tourism
Authority, et al, G.R. No. 135630, Sept. 26, 2000).
6. A writ of possession may be issued only in t h e

following cases: (a) land registration proceedings, which
are in rem; (b) extrajudicial foreclosure of a real estate
mortgage; (c) judicial foreclosure of a real estate mortgage;
which is a quasi in rem proceeding, provided the mortgagor
is in possession of the mortgaged property and no third
person, not a party to the foreclosure suit, had intervened;
and (d) in execution sales (Mabale vs. Apalisok, L-46942,
Feb. 6, 1979). W h e r e s u c h t h i r d p a r t i e s w e r e n o t
impleaded in the case which resulted in the execution sale
and the issue of possession was not passed upon in said
case, said t h i r d p a r t i e s cannot be ejected or their
improvements on the land be demolished p u r s u a n t to a
writ of possession without giving them an opportunity to
be heard (Perater, et al. vs. Rosete, et al, G.R. No. 54553,
May 29, 1984).
7. As already stated, appeal is the remedy from an

order denying the issuance of a writ of execution (Socorro
vs. Ortiz, supra). However, an order granting the issuance
of a writ of execution of a final judgment is not appealable
(Molina vs. De la Riva, 8 Phil. 571; Manaois-Salonga vs.
Natividad, 107 Phil. 268; J.M. Tuazon & Co., Inc. vs.
Jaramillo, L-19024 35, Sept. 23, 1963), except where the
order varies the t e r m s of the judgment (J.M. Tuazon &
479
Co., Inc. vs. Estabillo, L-20610, Jan. 10, 1975), or where,

being vague, t h e court r e n d e r s what is believed to be a
wrong i n t e r p r e t a t i o n of the j u d g m e n t (Castro vs. Surtida,
87 Phil. 166; Corpus vs. Alikpala, L-23707, Jan. 17, 1970;
Uytiepo, et al. vs. Aggabao, et al, L-28671, Sept. 30, 1970;
Heirs of Juan Francisco vs. Muhoz-Palma, et al,
L-28746, Feb. 27, 1971; De Guzman, et al vs. CA, et al,
G.R. No. 52733, July 23, 1985). A p a r t y who has
voluntarily executed a judgment, partially or in toto, or
who voluntarily acquiesces in or ratifies, either partially
or in toto, the execution of such judgment, is not permitted
to appeal from it (PVTA vs. De los Angeles, et al, L-30085-
87, Dec. 26, 1974). As a w r i t of execution c a n n o t be
a p p e a l e d , n e i t h e r c a n t h e o r d e r of d e m o l i t i o n issued
p u r s u a n t t h e r e t o be appealable (David vs. Ejercito, et al,
L-41334, June 18, 1976).
8. I n j u n c t i o n will lie to stop t h e a u c t i o n sale of

p r o p e r t y of a s t r a n g e r to t h e c a s e a n d it is not an
interference w i t h t h e w r i t of execution issued by another
court since t h e w r i t of execution is being illegally
i m p l e m e n t e d by t h e sheriff beyond t h e b o u n d s of his
a u t h o r i t y (Arabay vs. Salvador, L-31077, Mar. 17, 1978;
cf. Santos vs. Sibug, L-26815, May 26, 1981).
9. When the j u d g m e n t debtor has simulated a

t r a n s f e r of his property to evade execution, said property
may be levied upon for t h e satisfaction of t h e j u d g m e n t
w i t h o u t t h e need of an i n d e p e n d e n t action to rescind or
a n n u l the t r a n s f e r since an abolutely simulated or
fictitious contract is void a n d non-existent (De Belen vs.
Collector of Customs, 46 Phil. 241).
Sec. 9. Execution of judgments for money, how

enforced. — (a) Immediate payment on demand. — The
officer s h a l l e n f o r c e an e x e c u t i o n of a j u d g m e n t for
money by d e m a n d i n g from the judgment obligor the
i m m e d i a t e p a y m e n t o f t h e full a m o u n t s t a t e d i n t h e
480
w r i t o f e x e c u t i o n a n d a l l l a w f u l fees. T h e j u d g m e n t
obligor shall pay in cash, certified bank check
payable to t h e j u d g m e n t obligee, or any o t h e r form
of payment acceptable to the latter, the a m o u n t of
the judgment debt under proper receipt directly to
the obligee or his authorized representative if
present at the time of payment. T h e l a w f u l fees
shall be handed under proper receipt to the
executing sheriff who shall t u r n over the said
amount within the same day to the clerk of court of
the court t h a t issued the writ.
If the j u d g m e n t obligee or his authorized
representative is not present to receive payment,
the j u d g m e n t obligor shall deliver the aforesaid
p a y m e n t t o t h e e x e c u t i n g sheriff. T h e l a t t e r s h a l l
t u r n over all t h e a m o u n t s c o m i n g into his
possession within the same day to the clerk of court
of the court t h a t issued the writ, or if the same is
not practicable, deposit said a m o u n t to a fiduciary
account in the nearest government depository bank
of t h e Regional Trial Court of t h e locality.
The clerk of said court shall thereafter a r r a n g e
for t h e r e m i t t a n c e o f t h e d e p o s i t t o t h e a c c o u n t o f
the court that issued the writ whose clerk of court
shall then deliver said payment to the j u d g m e n t
obligee in satisfaction of the judgment. The excess,
if any, shall be delivered to the j u d g m e n t obligor
w h i l e t h e l a w f u l fees s h a l l b e r e t a i n e d b y t h e c l e r k
o f c o u r t for d i s p o s i t i o n a s p r o v i d e d b y l a w . I n n o
case shall t h e e x e c u t i n g sheriff d e m a n d t h a t any
p a y m e n t by check be m a d e payable to him.
(b) Satisfaction by levy. — If t h e j u d g m e n t
o b l i g o r c a n n o t p a y all o r p a r t o f t h e o b l i g a t i o n i n
cash, certified bank check or other mode of p a y m e n t
a c c e p t a b l e t o t h e j u d g m e n t o b l i g e e , t h e officer s h a l l
levy u p o n t h e p r o p e r t i e s o f t h e j u d g m e n t o b l i g o r o f
481
every kind and nature whatsoever which may be

d i s p o s e d o f for v a l u e a n d n o t o t h e r w i s e e x e m p t from
execution, giving the latter the option to
immediately choose w h i c h property or part thereof
may be levied upon, sufficient to satisfy the
judgment. If the judgment obligor does not exercise
t h e o p t i o n , t h e officer s h a l l first l e v y o n t h e p e r s o n a l
properties, if any, and then on the real properties
if t h e personal properties are insufficient to answer
for t h e j u d g m e n t .
The sheriff shall sell only a sufficient portion
of the personal or real property of the judgment
obligor which has been levied upon.
When there is more property of the judgment
obligor t h a n is sufficient to satisfy the judgment
and lawful fees, he must sell only so m u c h of the
p e r s o n a l o r r e a l p r o p e r t y a s i s s u f f i c i e n t t o satisfy
the j u d g m e n t and lawful fees.
Real property, stocks, shares, debts, credits,
and other personal property, or any interest in
either real or personal property, may be levied upon
in like m a n n e r and w i t h like effect as u n d e r a writ
of attachment.
(c) Garnishment of debts and credits.— T h e officer
may levy on debts due the judgment obligor and
other credits, including bank deposits, financial
interests, royalties, commissions and other personal
property not capable of manual delivery in the
possession or control of third parties. Levy shall
be made by serving notice upon the person owing
such debts or having in his possession or control
such credits to which the judgment obligor is
entitled. The garnishment shall cover only such
a m o u n t a s w i l l s a t i s f y t h e j u d g m e n t a n d all l a w f u l
fees.
482
RULE 39 EXECUTION, SATISFACTION S E C . 10
T h e g a r n i s h e e s h a l l m a k e a w r i t t e n r e p o r t to
t h e c o u r t w i t h i n five (5) d a y s from s e r v i c e o f t h e
notice of garnishment stating whether or not the
judgment obligor has sufficient funds or credits to
satisfy the a m o u n t of the judgment. If not, the
report shall state how much funds or credits the
g a r n i s h e e h o l d s for t h e j u d g m e n t o b l i g o r . T h e
garnished a m o u n t in cash, or certified bank check
issued in the name of the judgment obligee, shall
be delivered directly to the judgment obligee within
t e n (10) w o r k i n g d a y s f r o m s e r v i c e o f n o t i c e o n
said g a r n i s h e e r e q u i r i n g s u c h d e l i v e r y , e x c e p t t h e
lawful f e e s w h i c h s h a l l b e paid d i r e c t l y t o t h e court.
I n t h e e v e n t t h e r e are t w o o r m o r e g a r n i s h e e s
h o l d i n g d e p o s i t s o r c r e d i t s s u f f i c i e n t t o satisfy t h e
j u d g m e n t , t h e j u d g m e n t obligor, i f a v a i l a b l e , s h a l l
have the right to indicate the garnishee or
garnishees who shall be required to deliver the
amount due, otherwise, the choice shall be made
by the judgment obligee.
The e x e c u t i n g sheriff shall observe the same
p r o c e d u r e u n d e r p a r a g r a p h (a) w i t h r e s p e c t t o
delivery of payment to the judgment obligee.
(8a, 15a)
Sec. 10. Execution of judgments for specific acts. —

(a) Conveyance, delivery of deeds, or other specific acts;
vesting title. — If a j u d g m e n t d i r e c t s a p a r t y to
e x e c u t e a c o n v e y a n c e of land or p e r s o n a l property,
or to d e l i v e r d e e d s or other d o c u m e n t s , or to perform
any other specific act in connection therewith, and
t h e party fails t o c o m p l y w i t h i n t h e t i m e s p e c i f i e d ,
t h e c o u r t m a y d i r e c t t h e act to be d o n e at t h e c o s t
of the disobedient party by some other person
a p p o i n t e d b y t h e c o u r t and t h e act w h e n s o d o n e
shall h a v e like effect as if d o n e by t h e party. If real
or personal property is situated within the
483
P h i l i p p i n e s , the c o u r t in lieu of d i r e c t i n g a
conveyance thereof m a y by an o r d e r divest t h e title
of any party and vest it in others, which shall have
t h e f o r c e a n d effect o f a c o n v e y a n c e e x e c u t e d i n d u e
f o r m o f l a w . (10a)
(b) Sale of real or personal property. — If t h e
j u d g m e n t b e for t h e s a l e o f r e a l o r p e r s o n a l
p r o p e r t y , t o s e l l s u c h p r o p e r t y , d e s c r i b i n g it, a n d
apply the proceeds in conformity with the
j u d g m e n t . (8[c]a)
(c) Delivery or restitution of real property. — T h e
officer s h a l l d e m a n d o f t h e p e r s o n a g a i n s t w h o m
t h e j u d g m e n t for t h e d e l i v e r y o r r e s t i t u t i o n o f r e a l
p r o p e r t y i s r e n d e r e d a n d all p e r s o n s c l a i m i n g r i g h t s
under him to peaceably vacate the property within
t h r e e (3) w o r k i n g d a y s , a n d r e s t o r e p o s s e s s i o n
thereof to the j u d g m e n t obligee, otherwise, the
officer s h a l l o u s t all s u c h p e r s o n s t h e r e f r o m w i t h
the assistance, if necessary, of a p p r o p r i a t e peace
officers, a n d employing such m e a n s as may be
reasonably necessary to retake possession, and
place the j u d g m e n t obligee in possession of such
property. Any costs, damages, rents or profits
a w a r d e d by t h e j u d g m e n t shall be satisfied in the
s a m e m a n n e r a s a j u d g m e n t for m o n e y . (13a)
(d) Delivery of personal property. — In j u d g m e n t s
for t h e d e l i v e r y o f p e r s o n a l p r o p e r t y , t h e o f f i c e r
shall take possession of the same and forthwith
deliver it to the p a r t y entitled and satisfy any
j u d g m e n t for m o n e y a s t h e r e i n p r o v i d e d . (8a)
NOTES
1. T h e p r o v i s i o n s on j u d g m e n t s for specific acts

(Sec. 10) have been clarified by t h e qualification t h a t the
specific acts contemplated t h e r e i n a r e those in connection
with t h e directive to a p a r t y to execute a conveyance of
484
land or to deliver deeds or other documents. The further

clarification is t h a t the court, in order to divest the title of
the disobedient p a r t y and vest it in others, does not have
to "enter judgment" for t h a t purpose, as formerly provided,
since there is already a judgment for such conveyance; it
may now do so merely "by an order" to t h a t effect.
2. P a r s , (b), (c), (d) and (e) hereof were formerly

s e p a r a t e sections u n d e r t h i s Rule, but have now been
consolidated u n d e r this section as they all involve t h e
performance of particular acts directed by a judgment.
3. When a p a r t y refuses to yield possession of a

property as ordered by a writ of execution, contempt is
not the remedy. The sheriff must oust said p a r t y from
the property but if demolition is involved, there m u s t be a
hearing on motion and due notice for the issuance of a
special order u n d e r Sec. 14 (now, Sec. 10(dJ) of this Rule
(Fuentes, et al. vs. Leviste, et al., L 47363, Oct. 28, 1982;
Atal Moslem, et al. vs. Soriano, et al., L-36837, Aug. 17,
1983).
4. A writ of execution directing the sheriff to cause

t h e d e f e n d a n t to v a c a t e is in t h e n a t u r e of a habere
facias possessionem and authorizes the sheriff, without
the need of securing a "break open" order, to break open
the premises where there is no occupant therein (Arcadio,
et al. vs. Ylagan, A.C. No. 2734, July 30, 1986).
Sec. 11. Execution of special judgments. — W h e n a

judgment requires the performance of any act other
than those mentioned in the two preceding sections,
a c e r t i f i e d c o p y of t h e j u d g m e n t shall be a t t a c h e d
to t h e w r i t of e x e c u t i o n a n d s h a l l be s e r v e d by t h e
officer u p o n t h e p a r t y a g a i n s t w h o m t h e s a m e i s
rendered, or upon any other persons required
t h e r e b y , or by law, to o b e y t h e s a m e , a n d s u c h party
o r p e r s o n m a y b e p u n i s h e d for c o n t e m p t i f h e
d i s o b e y s s u c h j u d g m e n t . (9a)
485
RULE 39 R E M E D I A L LAW COMPENDIUM S E C . 12
NOTE
1. The special j u d g m e n t in this section is one which

r e q u i r e s t h e p e r f o r m a n c e o f a n y act, o t h e r t h a n t h e
p a y m e n t of money or the sale or delivery of real or personal
property, which a p a r t y m u s t personally do because his
personal qualifications and circumstances have been taken
into consideration. Refusal to comply is punishable by
c o n t e m p t (see Chinese Commercial Property Co. vs.
Martinez, L-18565, Nov. 30, 1962).
A j u d g m e n t for specific acts under Sec. 10, on the other
hand, directs a p a r t y to execute conveyance of land, or to
deliver deeds or o t h e r documents, or to perform any other
specific acts in connection t h e r e w i t h b u t which acts can
be performed by persons o t h e r t h a n said p a r t y . Hence,
on refusal to comply, t h e court can appoint some other
person to perform the act directed to be done at the expense
of t h e disobedient p a r t y a n d t h e act w h e n so done shall
have t h e s a m e effect as if performed by t h e p a r t y himself.
The disobedient p a r t y i n c u r s no liability for c o n t e m p t
(see Caluag vs. Pecson, et al., 82 Phil. 8; Francisco, et al.
vs. National Urban Planning Commission, 100 Phil. 984
[Unrep.J; Sandico, et al. vs. Piguing, et al., L-26115,
Nov. 29, 1971).
S e c . 12. Effect of levy on execution as to third

persons. — T h e l e v y on e x e c u t i o n s h a l l c r e a t e a
lien in favor of the judgment obligee over the
right, title and interest of the judgment obligor
in such property at the time of the levy, subject
t o l i e n s a n d e n c u m b r a n c e s t h e n e x i s t i n g . (16a).
NOTES
1. Levy m e a n s t h e act or acts by which an officer

s e t s a p a r t or a p p r o p r i a t e s a p a r t or t h e whole of t h e
p r o p e r t y of t h e j u d g m e n t d e b t o r for p u r p o s e s of t h e
486
p r o s p e c t i v e e x e c u t i o n sale (Llenares vs. Valdevella,

et al, 46 Phil. 358; Del Rosario vs. Yatco, L-18735,
Dec. 29, 1966). See Sec. 7, Rule 57 on t h e p r o c e d u r e
thereof. If s u s c e p t i b l e of a p p r o p r i a t i o n , t h e officer
r e m o v e s a n d t a k e s t h e p r o p e r t y for s a f e k e e p i n g ;
o t h e r w i s e , t h e s a m e i s placed u n d e r sheriff's g u a r d s .
Without a valid levy having been made, any sale of the
p r o p e r t y t h e r e a f t e r is void (Valenzuela vs. Aguilar,
L-18083, May 31, 1963). The judgment debtor m u s t be
served w i t h notice of t h e levy, b u t even if not served
therewith, this defect is cured by service on him of the
notice of sale prior to t h e sale (PBC vs. Macadaeg, etc.,
109 Phil. 981;Pamintuan, et al. vs. Munoz, et al., L-26331,
Mar. 15, 1968).
2. If the property involved is money, stocks or other

incorporeal property in the hands of third persons, the act
of appropriation by the sheriff is known as garnishment.
The garnishee will not be directed by the court to deliver
t h e funds or p r o p e r t y to t h e j u d g m e n t creditor as the
g a r n i s h m e n t m e r e l y s e t s a p a r t s u c h funds b u t does
not constitute t h e creditor as the owner of the garnished
p r o p e r t y (De la Rama vs. Villarosa, et al., L-19727,
June 29, 1963).
3. The garnishment of a bank deposit of the judgment

debtor is not a violation of R.A. 1405 (on secrecy of bank
deposits), as it does not involve an inquiry or examination
of such deposit (China Banking Corp., et al. vs. Ortega,
et al, L-34964, Jan. 31, 1973).
4. The preference given to a duly registered levy on
a t t a c h m e n t or execution over a prior unregistered sale is
well-settled. As e a r l y as Gomez vs. Levy Hermanos
(67 Phil. 134), the Supreme Court held t h a t an attachment
duly annotated on a certificate of title is superior to the
r i g h t of a p r i o r b u t u n r e g i s t e r e d b u y e r . Such duly
registered attachment or levy on execution obviously takes
precedence over a notice of lis pendens which does not
487
even create a lien. U n d e r t h e Torrens system, t h e auction

sale of t h a t property retroacts to t h e date the levy was
registered; and now, specifically u n d e r Secs. 51 and 52 of
P.D. 1529, t h e act of registration is t h e operative act to
convey or affect t h e land insofar as t h i r d p e r s o n s are
concerned, and of which acts they a r e deemed to have
constructive notice (Du vs. Stronghold Insurance Co., Inc.,
G.R. No. 156580, June 14, 2004).
S e c . 13. Property exempt from execution. — E x c e p t

as otherwise expressly provided by law, the
following property, a n d no o t h e r shall be exempt
from execution:
(a) T h e j u d g m e n t o b l i g o r ' s f a m i l y h o m e a s
provided by law, or the homestead in which he
resides, and land necessarily used in connection
therewith;
(b) O r d i n a r y t o o l s a n d i m p l e m e n t s p e r s o n a l l y
used by h i m in his t r a d e , employment, or livelihood;
(c) T h r e e h o r s e s , o r t h r e e c o w s , o r t h r e e
carabaos, or beasts of burden, such as the judgment
obligor may select, necessarily used by h i m in his
ordinary occupation;
(d) H i s n e c e s s a r y c l o t h i n g a n d a r t i c l e s f o r
ordinary personal use, excluding jewelry;
(e) H o u s e h o l d f u r n i t u r e a n d u t e n s i l s n e c e s s a r y
for h o u s e k e e p i n g , a n d u s e d for t h a t p u r p o s e b y t h e
j u d g m e n t obligor and his family, such as the
j u d g m e n t obligor may select, of a value not
exceeding one h u n d r e d t h o u s a n d pesos;
(f) P r o v i s i o n s f o r i n d i v i d u a l o r f a m i l y u s e
s u f f i c i e n t for f o u r m o n t h s ;
(g) T h e p r o f e s s i o n a l l i b r a r i e s a n d e q u i p m e n t o f
judges, lawyers, physicians, pharmacists, dentists,
engineers, surveyors, clergymen, teachers and
488
other professionals not exceeding three h u n d r e d

thousand pesos in value;
(h) O n e f i s h i n g b o a t a n d a c c e s s o r i e s n o t
exceeding the total value of one hundred thousand
pesos owned by a fisherman and by t h e lawful use
of which he e a r n s his livelihood;
(i) S o m u c h o f t h e s a l a r i e s , w a g e s , o r e a r n i n g s
o f t h e j u d g m e n t o b l i g o r for h i s p e r s o n a l s e r v i c e s
w i t h i n t h e f o u r m o n t h s p r e c e d i n g t h e levy a s a r e
n e c e s s a r y for t h e s u p p o r t o f h i s family;
(j) Lettered gravestones;
(k) M o n i e s , b e n e f i t s , p r i v i l e g e s , o r a n n u i t i e s
a c c r u i n g o r i n a n y m a n n e r g r o w i n g o u t o f a n y life
insurance;
(1) T h e r i g h t t o r e c e i v e l e g a l s u p p o r t , o r m o n e y
or property obtained as such support, or any
pension or g r a t u i t y from t h e G o v e r n m e n t ;
(m) P r o p e r t i e s s p e c i a l l y e x e m p t e d b y l a w .
But no article or species of property mentioned
in t h i s section shall be e x e m p t from e x e c u t i o n
i s s u e d u p o n a j u d g m e n t r e c o v e r e d for i t s p r i c e o r
u p o n a j u d g m e n t of f o r e c l o s u r e of a m o r t g a g e
t h e r e o n . (12a)
NOTES
1. Economic, legal and technological c h a n g e s or

d e v e l o p m e n t s over time since these exemptions were
provided for in the 1964 Rules of Court have necessitated
corresponding amendments.
a. The substantive concept of a family home and the
procedural or regulatory provisions thereon were
introduced by the Civil Code on August 30, 1950. The
"family home" and "homestead" provided for in the Family
Code which repealed and replaced the provisions of the
489
former on August 3, 1988 and, as now s t a t e d in P a r . (a),

refer to the same property except t h a t t h e family home is
so referred to if it had been e i t h e r judicially or
extrajudicially constituted u n d e r the Civil Code. However,
u n d e r Art. 153 of t h e Family Code, extrajudicial or judicial
constitution is no longer required as t h e family home is
deemed constituted on a house and lot from t h e time it is
occupied as a family residence and so long as any of its
beneficiaries actually resides t h e r e i n .
U n d e r the Civil Code, aside from specified obligations
on t h e p r o p e r t y (Arts. 232, 243), t h e family home is
exempt from execution or a t t a c h m e n t if t h e value does
n o t e x c e e d 1*20,000, o r P 3 0 . 0 0 0 i n c h a r t e r e d c i t i e s
(Arts. 231, 246). In t h e 1964 Rules of Court, the exemption
of t h e family home w a s limited to P3.000 (Sec. 12fa],
Rule 39). T h e r e a f t e r , t h e F a m i l y Code i n c r e a s e d t h e
exemption of t h e family home to not exceeding its actual
value at t h e t i m e of its c o n s t i t u t i o n in t h e a m o u n t of
P300.000 in u r b a n a r e a s , a n d P200.000 in r u r a l a r e a s , or
in such a m o u n t s as may t h e r e a f t e r be fixed by law; but
with t h e indefinite a n d open-ended qualification t h a t "(i)n
any event, if t h e value of t h e currency changes after the
adoption of t h i s Code, t h e value most favorable to t h e
c o n s t i t u t i o n of t h e family h o m e s h a l l be t h e b a s i s of
evaluation" (Art. 157).
Against such a contentious b a c k g r o u n d and to

f o r e s t a l l c o m p l i c a t e d s o l u t i o n s , o n p r a g m a t i c con-
s i d e r a t i o n s of t h e p e r e n n i a l housing problems a n d t h e
s e n t i m e n t a l a t t a c h m e n t o f F i l i p i n o s t o t h e i r family
r e s i d e n c e s , t h e S u p r e m e C o u r t decided t o g r a n t t o t a l
exemption to t h e family home without r e g a r d to its value,
subject only to specific u n a v o i d a b l e e x c e p t i o n s . This
a m e n d m e n t in t h e first p a r a g r a p h of this section does not
diminish, increase or modify substantive rights, but merely
operates as a m e a n s of implementing an existing right,
h e n c e it d e a l s m e r e l y w i t h p r o c e d u r e (see Fabian vs.
Desierto, etc., et al., G.R. No. 129742, Sept. 16, 1998).
490
b. Only ordinary tools and implements used in t r a d e

or employment a r e exempted but sophisticated tools of
advanced technological designs with considerable value,
such as power tools used in i n d u s t r i a l or commercial
concerns, are not exempt.
c. The n u m b e r of work animals or beasts of b u r d e n
exempt from execution has been increased, without limit
on their value, provided t h a t , and as long as, they a r e
used by the j u d g m e n t obligor in his ordinary occupation.
This takes into account the importance of work animals to
t h e f a r m e r s , w h o c o n s t i t u t e a l a r g e p o r t i o n of t h e
population, t h e unavailability of facilities for mechanized
farming and the fact t h a t t h e country operates in large
measure on an agricultural economy.
d. In addition to the j u d g m e n t creditor's ordinary
clothing, all other articles for his ordinary personal use,
but excluding u n e s s e n t i a l or expensive items such as
jewelry or sable a n d m i n k coats, a r e e x e m p t e d . The
additional p h r a s e "and t h a t of all his family," referring to
said items in t h e former Rule, has been eliminated for
being superfluous since the same belong to the members
of the j u d g m e n t debtor's family and not to him, hence they
are obviously not subject to execution.
e. The value of e x e m p t household f u r n i t u r e and
u t e n s i l s for h o u s e k e e p i n g , professional l i b r a r i e s a n d
equipment, and fishing boats and accessories (not only a
net), has been increased. The same increase has also
been made on the amount of provisions for individual or
family use and salaries, wages or earnings necessary for
the support of the judgment obligor's family; and the latter
items are now so specified in view of previous holdings
which distinguished salaries from wages.
Under the same rationale t h a t the ceiling on
exemptions for t h e family home, homestead or necessary
land therefor is no longer specifically s t a t e d in t h i s
a m e n d e d section, all m o n i e s , b e n e f i t s , p r i v i l e g e s or
491
a n n u i t i e s accruing or growing out of any life insurance

are likewise now exempt regardless of t h e a m o u n t of the
p r e m i u m s paid thereon. Of course, as u n d e r the former
section, this exemption does not apply to non-life insurance
coverage.
2. T h e e x e m p t i o n s e n u m e r a t e d h e r e i n c a n n o t be
claimed, p u r s u a n t to t h e last p a r a g r a p h , if the j u d g m e n t
is for t h e recovery of t h e u n p a i d price of t h e article
involved or for t h e foreclosure of a mortgage thereon.
3. T h e s e e x e m p t i o n s m u s t be claimed, otherwise
they a r e deemed waived (Herrera vs. McMicking, 14 Phil.
641). It is not t h e d u t y of t h e sheriff to s e t off t h e
exemptions on his own initiative.
4. T h e u s u f r u c t u a r y r i g h t of a widow over a lot
whereon she h a d constructed a residential house is not
e x e m p t from e x e c u t i o n a s i t i s not t h e " h o m e s t e a d "
contemplated u n d e r t h i s section. Such usufructuary right
may even be t r a n s f e r r e d or disposed of, hence it is an
i n t e r e s t in property which can be sold on execution, unlike
t h e usufruct of p a r e n t s over p r o p e r t y of t h e i r children
u n d e r p a r e n t a l a u t h o r i t y t h e n provided for in Art. 321 of
the Civil Code (Vda. de Bogacki vs. Inserto, et al., L-39187,
Jan. 30, 1982), a n d a m e n d e d by Art. 226, Family Code.
5 . O t h e r p r o p e r t i e s s p e c i a l l y e x e m p t e d from
execution, as contemplated in t h e above section, are:
(a) Property mortgaged to the DBP (Sec. 26, CA. 458);
(b) P r o p e r t y t a k e n o v e r b y t h e A l i e n P r o p e r t y
A d m i n i s t r a t i o n (Sec. 9[f], U.S. Trading With the Enemy
Act);
(c) Savings of n a t i o n a l prisoners deposited with the
Postal Savings B a n k (Act 2489);
(d) Backpay of pre-war civilian employees (R.A. 304);
(e) P h i l i p p i n e G o v e r n m e n t b a c k p a y t o g u e r i l l a s
(R.A. 897);
492
(f) P r o d u c e , w o r k a n i m a l s a n d farm i m p l e m e n t s
of a g r i c u l t u r a l lessees, subject to l i m i t a t i o n (Sec. 21,
R.A. 6389);
(g) B e n e f i t s from p r i v a t e r e t i r e m e n t s y s t e m s
of companies and establishments, with limitations
(R.A. 4917);
(h) Laborer's wages, except for debts i n c u r r e d for
food, shelter, clothing and medical attendance (Art. 1708,
Civil Code);
(i) Benefit p a y m e n t s from the SSS (Sec. 16, R.A.
1161, as amended by P.D. 24, 65 and 177);
G) C o p y r i g h t s and other r i g h t s in i n t e l l e c t u a l
property u n d e r the former copyright law, P.D. 49 (cf. Sec.
239.3, R.A. 8293); and
(k) Bonds issued u n d e r R.A. 1000 (NASSCO vs. CIR,
L-17874, Aug. 31, 1963).
6. S a l a r i e s , as d i s t i n g u i s h e d from w a g e s , w e r e
formerly not exempt from execution. The t e r m "wage"
d e n o t e s c o m p e n s a t i o n for m a n u a l l a b o r , s k i l l e d o r
unskilled, while the term "salary" denotes a higher degree
of employment or superior grade or service and implies a
position or office (Gaa vs. CA, et al., L-44169, Dec. 31,
1985). This distinction has been eliminated by Par. (i).
7. See notes under Secs. 7 and 8, Rule 57 regarding
other properties exempt from attachment, hence likewise
exempt from execution.
Sec. 14. Return of writ of execution. — T h e w r i t of

execution shall be returnable to the court issuing
it immediately after t h e j u d g m e n t h a s been satisfied
i n p a r t o r i n full. I f t h e j u d g m e n t c a n n o t b e s a t i s f i e d
i n full w i t h i n t h i r t y (30) d a y s a f t e r h i s r e c e i p t o f t h e
w r i t , t h e officer s h a l l r e p o r t t o t h e c o u r t a n d s t a t e
the reason therefor. Such writ shall continue in
493
effect d u r i n g the period within w h i c h the judgment

m a y b e e n f o r c e d b y m o t i o n . T h e officer s h a l l m a k e
a r e p o r t t o t h e c o u r t e v e r y t h i r t y (30) d a y s o n t h e
proceedings taken thereon until the judgment is
satisfied in full, or its effectivity e x p i r e s . The
r e t u r n s or periodic reports shall set forth the whole
o f t h e p r o c e e d i n g s t a k e n , a n d s h a l l b e filed w i t h t h e
court and copies thereof promptly furnished the
p a r t i e s . (11a)
NOTE
1. This a m e n d e d provision changes t h e procedure in

t h e former Sec. 11 of t h i s Rule wherein t h e lifetime of a
writ of execution w a s 60 days from its receipt by t h e officer
required to enforce t h e same, after which period, such writ
b e c o m e s functus officio a n d all a c t s d o n e t h e r e a f t e r
p u r s u a n t t h e r e t o a r e null a n d void.
U n d e r t h e p r e s e n t a m e n d e d practice, t h e lifetime of
the writ of execution corresponds to the period within which
t h e j u d g m e n t may be enforced by motion, t h a t is, within
5 y e a r s from e n t r y thereof since t h e r e a f t e r such j u d g m e n t
becomes d o r m a n t a n d subject to a revival action. Within
t h e period for its enforceability a n d from its receipt by the
officer t a s k e d w i t h its enforcement, t h e officer shall make
the periodic reports to t h e court as required by this section
until t h e j u d g m e n t is fully satisfied or becomes ineffective.
S e c . 15. Notice of sale of property on execution. —

Before the sale of property on execution, notice
thereof must be given as follows:
(a) I n c a s e o f p e r i s h a b l e p r o p e r t y , b y p o s t i n g
written notice of the time and place of the sale in
t h r e e (3) p u b l i c p l a c e s , p r e f e r a b l y i n c o n s p i c u o u s
a r e a s o f t h e m u n i c i p a l o r c i t y h a l l , p o s t office a n d
public market in the municipality or city where
494
RULE 39 EXECUTION. SATISFACTION SEC. 15
t h e s a l e i s t o t a k e p l a c e , for s u c h t i m e a s m a y
be reasonable, considering the character and
c o n d i t i o n o f t h e property;
(b) I n c a s e o f o t h e r p e r s o n a l p r o p e r t y , b y
p o s t i n g a s i m i l a r n o t i c e i n t h e t h r e e (3) p u b l i c
p l a c e s a b o v e - m e n t i o n e d , for not l e s s t h a n five (5)
days;
(c) I n c a s e o f r e a l p r o p e r t y , b y p o s t i n g for
t w e n t y (20) d a y s in t h e t h r e e (3) p u b l i c p l a c e s a b o v e -
mentioned, a similar notice particularly describing
the property and stating where the property is to
b e sold, a n d i f t h e a s s e s s e d v a l u e o f t h e p r o p e r t y
e x c e e d s fifty t h o u s a n d (P50,000.00) p e s o s , by
p u b l i s h i n g a c o p y of t h e n o t i c e o n c e a w e e k for t w o
(2) c o n s e c u t i v e w e e k s i n o n e n e w p a p e r s e l e c t e d b y
raffle, w h e t h e r i n E n g l i s h , F i l i p i n o , o r a n y major
regional language published, edited and circulated
or, i n t h e a b s e n c e thereof, h a v i n g g e n e r a l
c i r c u l a t i o n in t h e p r o v i n c e or city;
(d) In all c a s e s , w r i t t e n n o t i c e of t h e sale s h a l l
be g i v e n to t h e j u d g m e n t obligor, at l e a s t t h r e e (3)
days before the sale, except as provided in
p a r a g r a p h (a) h e r e o f w h e r e n o t i c e s h a l l b e g i v e n
at a n y t i m e before t h e sale, in t h e s a m e m a n n e r as
personal service of pleadings and other papers as
p r o v i d e d by s e c t i o n 6 of Rule 13.
The notice shall specify the place, date and
e x a c t t i m e of t h e s a l e w h i c h s h o u l d not be e a r l i e r
t h a n n i n e o'clock i n t h e m o r n i n g and not later t h a n
t w o o'clock in t h e afternoon. The place of t h e sale
m a y be a g r e e d u p o n by t h e parties. In t h e a b s e n c e
of such a g r e e m e n t , the sale of real property or
p e r s o n a l p r o p e r t y not c a p a b l e of m a n u a l d e l i v e r y
shall be h e l d in t h e office of t h e clerk of c o u r t of t h e
R e g i o n a l Trial Court or t h e Municipal Trial Court
which issued the writ or which was designated
495
by the appellate court. In the case of personal

property capable of m a n u a l delivery, the sale shall
be held in the place where the property is located.
(18a)
NOTE
1. This is an a m e n d e d version of the former Sec. 18

of this Rule, w i t h more specifications and details on the
places w h e r e notices of t h e sale should be posted, the
publication thereof, furnishing copies of the same, and, in
t h e last p a r a g r a p h , t h e details on w h e r e and how t h e sale
of real or p e r s o n a l property shall be conducted.
S e c . 16. Proceedings where property claimed by

third person. — If t h e p r o p e r t y l e v i e d on is c l a i m e d
by any person other than the judgment obligor or
his agent, and s u c h p e r s o n m a k e s an affidavit of
h i s t i t l e t h e r e t o o r r i g h t t o t h e p o s s e s s i o n thereof,
stating the grounds of such right or title, and serves
the same u p o n t h e officer m a k i n g the levy and a
c o p y t h e r e o f u p o n t h e j u d g m e n t o b l i g e e , t h e officer
shall not be bound to keep the property, unless such
j u d g m e n t o b l i g e e , o n d e m a n d o f t h e officer, files a
bond approved by the court to indemnify the
third-party claimant in a s u m not less than the value
of the property levied on. In case of disagreement
as to such value, the same shall be determined by
the court issuing the writ of execution. No claim
for d a m a g e s for t h e t a k i n g o r k e e p i n g o f t h e
property may be enforced against the bond unless
the a c t i o n therefor is filed w i t h i n one h u n d r e d
t w e n t y (120) d a y s f r o m t h e d a t e o f t h e f i l i n g o f t h e
bond.
T h e o f f i c e r s h a l l n o t b e l i a b l e for d a m a g e s ,
for t h e t a k i n g o r k e e p i n g o f t h e p r o p e r t y , t o a n y
t h i r d - p a r t y c l a i m a n t if s u c h bond" is filed. N o t h i n g
496
herein contained shall prevent such claimant or

a n y t h i r d p e r s o n from v i n d i c a t i n g h i s c l a i m t o t h e
property in a separate action, or p r e v e n t the
j u d g m e n t obligee from c l a i m i n g d a m a g e s i n t h e s a m e
or a s e p a r a t e a c t i o n a g a i n s t a t h i r d - p a r t y c l a i m a n t
w h o filed a f r i v o l o u s or p l a i n l y s p u r i o u s c l a i m .
W h e n t h e w r i t o f e x e c u t i o n i s i s s u e d i n favor o f
t h e R e p u b l i c o f t h e P h i l i p p i n e s , o r a n y officer d u l y
r e p r e s e n t i n g it, t h e filing o f s u c h b o n d s h a l l n o t b e
r e q u i r e d , a n d i n c a s e t h e s h e r i f f o r l e v y i n g officer
is s u e d for d a m a g e s as a r e s u l t of t h e levy, he s h a l l
be r e p r e s e n t e d by t h e S o l i c i t o r G e n e r a l a n d if h e l d
liable t h e r e f o r , t h e a c t u a l d a m a g e s a d j u d g e d b y t h e
court shall be paid by the National Treasurer out
o f s u c h f u n d s a s m a y b e a p p r o p r i a t e d for t h e
p u r p o s e . (17a)
NOTES
1. As a m e n d e d , t h i s section expresses in a more

categorical m a n n e r t h a t the officer making the levy shall
not be liable for damages to any third-party claimant if a
bond to indemnify the latter has been filed. The officer's
immunity from liability, however, is only with respect to
d a m a g e s a r i s i n g from his t a k i n g a n d k e e p i n g of t h e
property claimed by the third party. Damages arising
from acts on his p a r t not connected with his official duty
t o t a k e a n d k e e p s u c h p r o p e r t y a r e not w i t h i n t h e
conditions of the bond and he can be held liable therefor
under proper showing of his culpability.
An innovation incorporated by this amendment is that
the judgment obligee can also claim damages against a
t h i r d - p a r t y c l a i m a n t who filed a frivolous or plainly
spurious claim, and such judgment obligee can institute
proceedings therefor in the same or a separate action.
497
2. Where a t h i r d - p a r t y claim h a s been filed in due

form, the prevailing party can compel t h e sheriff to proceed
by t h e filing of a bond to a n s w e r for d a m a g e s t h a t may be
incurred as a consequence of the execution. On t h e other
hand, if t h e sheriff proceeds with t h e sale w i t h o u t such
bond, he will be personally liable for such d a m a g e s as
may b e s u s t a i n e d b y a n d a w a r d e d t o t h e t h i r d - p a r t y
claimant (Bayer Phil., Inc., et al. vs. Agana, et al., L-38701,
April 8, 1975).
3. W h e n a t h i r d - p a r t y claim is contested, t h e court
has t h e power to fix t h e value of t h e p r o p e r t y claimed by
t h e t h i r d person, so t h a t a bond equal to such value may
be posted by t h e j u d g m e n t creditor to indemnify t h e sheriff
a g a i n s t liability for d a m a g e s ; or e x a m i n e t h e j u d g m e n t
debtor a n d otherwise perform such o t h e r acts necessary
or incidental to carrying out its j u d g m e n t . It may exercise
control and supervision over t h e sheriff a n d o t h e r court
officers t a k i n g p a r t in t h e execution proceedings. If the
sheriff erroneously seizes p r o p e r t y of a t h i r d person, the
court, upon t h e l a t t e r ' s application a n d after s u m m a r y
h e a r i n g , m a y order t h e release of t h e p r o p e r t y from the
m i s t a k e n levy and its r e s t o r a t i o n to t h e lawful owner or
possessor. However, if t h e t h i r d - p a r t y claimant's proofs
do not p e r s u a d e t h e court of his title or r i g h t of possession
over t h e property, t h e claimant's remedy is set out in Sec.
16 of t h i s Rule, which may be resorted to before or without
availment of t h e recourses above set forth (Ong vs. Tating,
et al., G.R. No. 61042, April 15, 1987).
4. Where t h e t h i r d - p a r t y claim h a s been disregarded

by t h e sheriff because of t h e bond filed by t h e prevailing
p a r t y , or if t h e court proceedings on said t h i r d - p a r t y claim
result in a denial thereof, t h e remedy of t h e t h i r d - p a r t y
c l a i m a n t is to file an i n d e p e n d e n t reivindicatory action
against the judgment creditor or the purchaser at
public auction (see Lara vs. Bayona, etc., et al, 97 Phil.
951; Polaris Marketing Corp. vs. Plan, et al, L-40666,
498
Jan. 22, 1976; Bayer Phil., Inc. vs. Agana, supra).

Said t h i r d - p a r t y claimant cannot appeal nor avail
of c e r t i o r a r i as a r e m e d y (Sierra vs. Rodriguez, et al.,
L-25546, April 23, 1974; Northern Motors, Inc. vs. Coquia,
et al., L-40018, Mar. 21, 1975) since he is not a p a r t y to
the original action.
5. The rights of third-party claimants should not be

decided in the action where t h e t h i r d - p a r t y claims a r e
presented, but in a s e p a r a t e action which the court should
direct the claimants to file (San Francisco Oil & Paint
Co. vs. Bayer Phil, Inc., L-38801, April 8, 1975). The
r e a s o n for t h i s is t h a t "no m a n s h a l l be affected by
proceedings to which he is a stranger" (Polaris Marketing
Corp. vs. Plan, et al., supra), and said s e p a r a t e action may
be tried by a different b r a n c h of the same court or by
a n o t h e r court (Lorenzana vs. Cayetano, et al., L-37051,
Aug. 31, 1977).
6. In t h e action for damages upon the bond filed by
t h e j u d g m e n t creditor, t h e s u r e t y m u s t be impleaded,
otherwise the judgment therein cannot be enforced against
the bond (Montojo vs. Hilario, 58 Phil. 372). But an
action against the surety is binding upon the principal if
the l a t t e r had knowledge thereof and an opportunity to
participate in t h e defense (Sec. 46, Rule 39).
7. Sec. 16 of this Rule authorizes any person other

t h a n the j u d g m e n t debtor or his agent to vindicate his
claim to the property by any proper action, t h a t is, by any
action entirely s e p a r a t e and distinct from t h a t in which
the execution has issued. This is true, however, if such
action is instituted by a s t r a n g e r to the latter suit. On the
other hand, if the claim of impropriety in the execution
proceedings is made by a party to the original action, not
by a s t r a n g e r thereto, any relief therefrom may be applied
for with, and obtained from, only t h e executing court
(Mariano vs. CA, et al., G.R. No. 51283, June 7, 1989).
499
8. U n d e r t h e aforesaid section, it is immaterial as to

w h e t h e r or not t h e sheriff made a valid levy on properties
on execution before a person, other t h a n t h e j u d g m e n t
d e b t o r , c l a i m i n g o w n e r s h i p o r r i g h t s over t h e levied
properties can file a s e p a r a t e action to prosecute his claim
thereover. A person other t h a n t h e j u d g m e n t debtor may
file a s e p a r a t e action over said p r o p e r t i e s even if t h e
sheriffs levy on the properties on execution was considered
void. The issue as to w h e t h e r or not t h e r e was an illegal
levy on p r o p e r t i e s u n d e r execution can be t h r e s h e d out in
a s e p a r a t e action (Consolidated Bank & Trust Corp.,
et al. vs. CA, et al., G.R. No. 78771, Jan. 23, 1991, and
companion cases).
9. The remedies of a t h i r d - p a r t y claimant mentioned

in Sec. 16 of this Rule, t h a t is, a s u m m a r y h e a r i n g before
the court which a u t h o r i z e d t h e execution, or a "terceria"
or t h i r d - p a r t y claim filed with t h e sheriff, or an action for
d a m a g e s on t h e bond posted by t h e j u d g m e n t creditor, or
a n i n d e p e n d e n t r e i v i n d i c a t o r y action, a r e c u m u l a t i v e
remedies and may be resorted to by a third-party claimant
independently of or s e p a r a t e l y from a n d without need of
availing of t h e o t h e r s . If he opted to file a proper action
to vindicate his claim of ownership, he m u s t institute an
action, d i s t i n c t a n d s e p a r a t e from t h a t i n which t h e
j u d g m e n t is being enforced, with a competent court even
before or without filing a claim in t h e court which issued
the writ, t h e l a t t e r not being a condition sine qua non for
the former. This proper action would have for its object
t h e recovery of ownership or possession of t h e property
seized by the sheriff, as well as damages against the sheriff
and o t h e r persons responsible for t h e illegal seizure or
detention of t h e p r o p e r t y . The validity of t h e title of the
t h i r d - p a r t y c l a i m a n t shall be resolved in said action and a
writ of p r e l i m i n a r y injunction may be issued against the
sheriff (Sy, et al. vs. Discaya, et al., G.R. No. 86301,
Jan. 23, 1990).
500
R U L E 39 EXECUTION, SATISFACTION S E C . 16
10. It will be noted t h a t under this section, a third

p a r t y c l a i m a n t s e e k i n g t o v i n d i c a t e his claim t o t h e
property, or a j u d g m e n t obligee with a claim for damages,
may enforce their claims in a s e p a r a t e action i n s t i t u t e d
for t h a t purpose a n d not in the s a m e court w h e r e t h e
execution proceedings are being conducted. On the other
hand, such claims contemplated and arising in a t t a c h -
ment proceedings (Sec. 14, Rule 57) and replevin suits
(Sec. 7, Rule 60) may be litigated in t h e s a m e action
involved or in a separate suit. The reason for the difference
is t h a t the j u d g m e n t in the case subject of this section is
already final and executory, while Rules 57 and 60 involve
actions still pending in the trial court.
1 1 . As shown in the foregoing discussion, a s e p a r a t e

case, distinct from t h a t in which the execution was issued,
is proper if instituted by a "stranger" to the latter suit.
On t h e o t h e r h a n d , if t h e claim of impropriety in t h e
execution proceedings is made by a party to the action,
not a s t r a n g e r thereto, any relief therefrom may only be
applied for and obtained from the executing court.
It has been held t h a t a spouse who was not a party to
the suit but whose conjugal property is being executed
because the other spouse is the judgment obligor, is not
considered a s t r a n g e r to the suit. That spouse cannot be
allowed to file a s e p a r a t e action to question the execution
of their conjugal property since they could have easily
questioned the execution in the main case itself.
However, there have been instances where a spouse
was allowed to file a s e p a r a t e case against a wrongful
execution, but they rest on different factual bases. Thus,
the institution of a separate and independent action was
a l l o w e d w h e n t h e p r o p e r t y w a s t h e exclusive o r
paraphernal property of a spouse who was not a party to
the case the judgment wherein was sought to be executed.
In such a situation, the aggrieved spouse was deemed to
be a stranger to t h a t main action (Ching vs. CA, et al.,
501
RULE 39 R E M E D I A L LAW C O M P E N D I U M S E C S . 17, 1 8
G.R. No. 118830, Feb. 24, 2003).
Sec. 17. Penalty for selling without notice, or

removing or defacing notice. — An o f f i c e r s e l l i n g
without the notice prescribed by section 15 of this
Rule shall be liable to pay punitive damages in the
a m o u n t o f five t h o u s a n d p e s o s (F5,000.00) t o a n y
person injured thereby, in addition to his actual
damages, both to be recovered by motion in the
same action, and a person willfully removing or
d e f a c i n g t h e n o t i c e p o s t e d , i f d o n e b e f o r e t h e sale,
or before the satisfaction of the j u d g m e n t if it be
s a t i s f i e d b e f o r e t h e s a l e , s h a l l b e l i a b l e t o p a y five
t h o u s a n d p e s o s (P5,000.00) t o a n y p e r s o n i n j u r e d
by reason thereof, in addition to his actual damages,
to be recovered by motion in the same action.
(19a)
NOTES
1. A sale w i t h o u t t h e required notice is null and void

(Ago vs. CA, et al., L-17898, Oct. 31, 1962), a n d subjects
t h e officer to liability for d a m a g e s . T h e creditor who
induced t h e sheriff to sell w i t h o u t notice will be solidarily
liable as a tortfeasor (Campomanes vs. Bartolome, et al.,
38 Phil. 808).
2. An execution sale m a d e on t h e d a t e after t h a t

fixed in t h e notice of sale is null and void. The said sale
is also a nullity w h e r e t h e r e q u i r e m e n t for t h e posting of
notices, as now specified in Sec. 15 of t h i s Rule, is not
complied w i t h (see Prov. Sheriff of Rizal vs. CA, et al.,
L-22606, Dec. 12, 1975).
Sec. 18. No sale if judgment and costs paid. — At

any time before the sale of property on execution,
the j u d g m e n t obligor may prevent the sale by
paying the amount required by the execution and
502
the costs that have been incurred therein. (20a)
Sec. 19. How property sold on execution; who may

direct manner and order of sale. — All s a l e s of p r o p e r t y
under execution must be made at public auction, to
t h e h i g h e s t b i d d e r , t o s t a r t a t t h e e x a c t t i m e fixed
i n t h e n o t i c e . After s u f f i c i e n t p r o p e r t y h a s b e e n
sold t o satisfy t h e e x e c u t i o n , n o m o r e s h a l l b e s o l d
and any excess property or proceeds of the sale shall
be promptly delivered to the judgment obligor or
his authorized representative unless otherwise
d i r e c t e d by t h e j u d g m e n t or order of t h e court. W h e n
the sale is of real property, consisting of several
k n o w n l o t s , t h e y m u s t b e sold s e p a r a t e l y , or, w h e n
a p o r t i o n of s u c h r e a l p r o p e r t y is c l a i m e d by a t h i r d
person, he may require it to be sold separately.
When the sale is of personal property capable of
m a n u a l d e l i v e r y , i t m u s t b e sold w i t h i n v i e w o f t h o s e
attending the same and in such parcels as are likely
to bring the highest price. The judgment obligor,
if present at the sale, may direct the order in which
p r o p e r t y , r e a l o r p e r s o n a l , s h a l l b e sold, w h e n s u c h
p r o p e r t y c o n s i s t s o f s e v e r a l k n o w n lots o r p a r c e l s
w h i c h c a n b e sold t o a d v a n t a g e s e p a r a t e l y . N e i t h e r
t h e officer c o n d u c t i n g t h e e x e c u t i o n s a l e , nor h i s
d e p u t i e s , c a n b e c o m e a p u r c h a s e r , nor be i n t e r e s t e d
d i r e c t l y o r i n d i r e c t l y i n a n y p u r c h a s e a t s u c h sale.
(21a)
NOTES
1. This is a reproduction of the former Sec. 21 of

this Rule, with the a m e n d m e n t t h a t the sale at public
auction must s t a r t at the exact time fixed in the notice of
sale, instead of "between the hours of nine in the morning
and five in the afternoon," stated in t h a t section and which
was not only indefinite b u t also s u s c e p t i b l e of
manipulation.
503
2. The j u d g m e n t creditor can bid and purchase at

the public auction (see Sec. 21), b u t t h e officer conducting
the execution sale or his deputy a r e disqualified. Other
persons disqualified from participating in said public sale
are e n u m e r a t e d in Art. 1491 of t h e Civil Code, viz.:
"Art. 1491. The following persons cannot acquire
by p u r c h a s e , even at a public or judicial auction,
e i t h e r in person or t h r o u g h t h e mediation of another:
(1) The g u a r d i a n , t h e property of the person or
p e r s o n s who may be u n d e r his g u a r d i a n s h i p ;
(2) Agents, t h e property whose administration or
sale m a y have b e e n i n t r u s t e d to t h e m , unless the
consent of t h e principal h a s been given;
(3) Executors a n d a d m i n i s t r a t o r s , the property
of t h e e s t a t e u n d e r a d m i n i s t r a t i o n ;
(4) Public officers a n d employees, the property
of t h e S t a t e or of a n y subdivision thereof, or any
g o v e r n m e n t owned or controlled corporation or
i n s t i t u t i o n , t h e a d m i n i s t r a t i o n of which h a s been
i n t r u s t e d to t h e m ; t h i s provision shall apply to judges
and g o v e r n m e n t experts who, in any m a n n e r
whatsoever, t a k e p a r t in t h e sale;
(5) Justices, judges, prosecuting attorneys, clerks
of s u p e r i o r a n d inferior courts, a n d o t h e r officers and
employees connected with the administration of
justice, t h e p r o p e r t y a n d r i g h t s in litigation or levied
u p o n a n e x e c u t i o n before t h e c o u r t w i t h i n whose
jurisdiction or t e r r i t o r y they exercise their respective
functions; this prohibition includes the act of
acquiring by a s s i g n m e n t and shall apply to lawyers,
with respect to t h e property and rights which may be
t h e object of any litigation in which they may take
p a r t by v i r t u e of t h e i r profession;
(6) Any o t h e r s specially disqualified by law."
504
Relative to Par. (6) hereof, it is provided t h a t a seller

of goods who e x e r c i s e s the r i g h t of r e s a l e is also
disqualified from participating in a public sale of said goods
(see Art. 1646, Civil Code; Maharlika Publishing Corp.,
et al. vs. Tagle, et al., G.R. No. 65594, July 9, 1986).
3. The remedy against an irregular sale is a motion

to vacate or set aside t h e sale to be filed in the court which
issued the writ of execution. A shocking inadequacy of
price at a judicial sale w a r r a n t s the setting aside thereof
(Barrozo vs. Macaraeg, 83 Phil. 378) and such sale is null
and void (Prov. Sheriff of Rizal vs. CA, et al., ante), but
this rule does not apply to conventional sales. It has been
held, however, t h a t even in execution sales, if t h e r e is a
r i g h t to r e d e e m , t h e m e r e i n a d e q u a c y of price is not
m a t e r i a l since t h e j u d g m e n t debtor may reacquire the
property or sell his right to redeem and t h u s recover any
loss he claims to have suffered by reason of t h e price
obtained at t h e execution sale (Barrozo vs. Macaraeg,
supra; Ponce de Leon vs. RFC, L-24571, Dec. 18, 1970).
S e c . 20. Refusal of purchaser to pay. — If a

p u r c h a s e r r e f u s e s t o p a y t h e a m o u n t bid b y h i m for
p r o p e r t y s t r u c k off to h i m at a sale u n d e r e x e c u t i o n ,
the officer may again sell the property to the
h i g h e s t b i d d e r a n d s h a l l not b e r e s p o n s i b l e for a n y
l o s s o c c a s i o n e d t h e r e b y , but t h e c o u r t m a y o r d e r
the refusing purchaser to pay into the court the
amount of such loss, with costs, and may punish
h i m for c o n t e m p t i f h e d i s o b e y s t h e o r d e r . T h e
a m o u n t of s u c h p a y m e n t s h a l l be for t h e b e n e f i t of
the person entitled to the proceeds of the execution,
u n l e s s t h e e x e c u t i o n h a s b e e n fully s a t i s f i e d , i n
w h i c h e v e n t s u c h p r o c e e d s shall b e for t h e benefit
of t h e j u d g m e n t obligor. The officer may t h e r e a f t e r
reject a n y s u b s e q u e n t bid o f s u c h p u r c h a s e r w h o
r e f u s e s to pay. (22a)
505
RULE 39 R E M E D I A L LAW C O M P E N D I U M S E C S . 21 22
NOTE
1. The m e a s u r e of d a m a g e s to which t h e j u d g m e n t
creditor is entitled a g a i n s t t h e unlawful intervenor is the
difference b e t w e e n t h e a m o u n t which would have been
realized were it not for t h e illegal intervention (but not to
exceed t h e j u d g m e n t account) and t h e total a m o u n t which
he actually recovered on t h e j u d g m e n t from all sources,
including t h e a m o u n t actually realized at t h e auction sale,
plus t h e expenses incurred as a consequence of t h e illegal
i n t e r v e n t i o n (see Mata vs. Lichauco, 36 Phil. 809).
S e c . 2 1 . Judgment obligee as purchaser. — W h e n

the purchaser is the judgment obligee, and no
t h i r d - p a r t y c l a i m h a s b e e n filed, h e n e e d n o t p a y
the a m o u n t of t h e bid if it d o e s not e x c e e d the
amount of his judgment. If it does, he shall pay only
t h e e x c e s s . (23a)
Sec. 22. Adjournment of sale. — By w r i t t e n c o n s e n t

of the j u d g m e n t obligor and obligee, or their duly
a u t h o r i z e d r e p r e s e n t a t i v e s , t h e officer m a y a d j o u r n
the sale to any date and time agreed upon by them.
Without s u c h a g r e e m e n t , he may adjourn the sale
f r o m d a y t o d a y i f i t b e c o m e s n e c e s s a r y t o d o s o for
l a c k o f t i m e t o c o m p l e t e t h e s a l e o n t h e d a y fixed i n
t h e n o t i c e o r t h e d a y t o w h i c h i t w a s a d j o u r n e d . (24a)
NOTES
1. The officer may adjourn t h e sale from day to day

if it is necessary to do so for lack of time to complete t h e
sale on t h e d a t e fixed in t h e notice. He may not, however,
adjourn t h e sale to a n o t h e r d a t e unless with t h e w r i t t e n
consent of t h e p a r t i e s , otherwise t h e sale t h u s conducted
will be null a n d void (Abrozar, et al. vs. IAC, et al., G.R.
No. 67970, Jan. 15, 1988).
506
RULE 39 EXECUTION, SATISFACTION SECS. 23-25
2. When t h e r e is a third-party claim, t h e j u d g m e n t

c r e d i t o r m u s t pay his w i n n i n g bid in c a s h (Filipinos
Colleges, Inc. vs. Timbang, L-12812, Sept. 29, 1969).
3. A writ of execution in an ejectment case may be
enforced in the afternoon of a Saturday or after office hours
(Sycip vs. Salaysay, et al., A.M. No. PI 58, Jan. 31, 1974).
Sec. 23. Conveyance to purchaser of personal property

capable of manual delivery. — W h e n t h e p u r c h a s e r of
any personal property, capable of manual delivery,
p a y s t h e p u r c h a s e p r i c e , t h e officer m a k i n g t h e s a l e
must deliver the property to the purchaser and, if
desired, execute and deliver to h i m a certificate of
sale. The sale c o n v e y s to t h e p u r c h a s e r all t h e
rights which the judgment obligor had in such
property as of the date of the levy on execution or
p r e l i m i n a r y a t t a c h m e n t . (25a)
Sec. 24. Conveyance to purchaser of personal property

not capable of manual delivery. — W h e n t h e p u r c h a s e r
of any personal property, not capable of manual
d e l i v e r y , p a y s t h e p u r c h a s e price, t h e officer m a k i n g
the sale must execute and deliver to the purchaser
a c e r t i f i c a t e of s a l e . S u c h c e r t i f i c a t e c o n v e y s to
the p u r c h a s e r all the rights which the j u d g m e n t
obligor had in such property as of the date of the
levy o n e x e c u t i o n o r p r e l i m i n a r y a t t a c h m e n t . (26a)
Sec. 25. Conveyance of real property; certificate thereof

given to purchaser and filed with registry of deeds. —
U p o n a s a l e of real p r o p e r t y , t h e officer m u s t give
to t h e p u r c h a s e r a c e r t i f i c a t e of sale c o n t a i n i n g :
(a) A particular description of the real property
sold;
(b) The price paid for e a c h distinct lot or parcel;
(c) T h e w h o l e price paid by him;
507
(d) A s t a t e m e n t t h a t t h e r i g h t of r e d e m p t i o n
e x p i r e s o n e (1) y e a r f r o m t h e d a t e o f the
registration of the certificate of sale.
Such certificate must be registered in the
registry of deeds of the place where the property is
s i t u a t e d . (27a)
S e c . 26. Certificate of sale where property claimed by

third person. — W h e n a p r o p e r t y s o l d by v i r t u e of a
writ of e x e c u t i o n has been claimed by a third
person, the certificate of sale to be issued by the
s h e r i f f p u r s u a n t t o s e c t i o n s 23, 2 4 a n d 2 5 o f t h i s Rule
shall make express mention of the existence of such
t h i r d - p a r t y c l a i m . (28a)
NOTES
1. There is no right of redemption where the property

sold at j u d i c i a l sale is p e r s o n a l p r o p e r t y . W h e r e t h e
p r o p e r t y sold is r e a l property, t h e period of redemption is
one y e a r from a n d after t h e r e g i s t r a t i o n of t h e certificate
of sale m e n t i o n e d in Sec. 25 (Rosario vs. Tayug Rural
Bank, L-26538, Mar. 21, 1968; Reyes vs. Manas, L-27755,
Oct. 4, 1969). If said certificate of sale is not registered,
the period for redemption does not r u n (Garcia vs. Ocampo,
et al., 105 Phil. 1102). B u t w h e r e t h e p a r t i e s agreed on
t h e d a t e of r e d e m p t i o n , t h e s t a t u t o r y period for legal
r e d e m p t i o n w a s c o n v e r t e d into one of conventional
r e d e m p t i o n and t h e period binding on t h e m is t h a t agreed
upon (Lazo vs. Republic Surety & Insurance Co., Inc.,
L-27365, Jan. 30, 1970).
2. The certificate of sale of real property is merely a

memorial of t h e fact of sale a n d does not confer any right
to t h e possession, much less t h e ownership, of t h e real
p r o p e r t y p u r c h a s e d . It is t h e deed of sale executed by the
sheriff at t h e expiration of t h e period of redemption (see
Sec. 33) which c o n s t i t u t e s effective conveyance of t h e
508
RULE 39 EXECUTION. SATISFACTION SECS. 27-28
property sold and entitles t h e p u r c h a s e r to possession of

the property sold (see Gonzales vs. Calimbas, et al., 51
Phil. 358).
3. The clerk shall keep an execution book in which
he or his deputy shall record at length in chronological
order each execution, and the officer's r e t u r n thereon by
virtue of which real property has been sold (Sec. 10, Rule
136).
Sec. 27. Who may redeem real property so sold. —

Real p r o p e r t y s o l d a s p r o v i d e d i n t h e l a s t p r e c e d i n g
section, or any part thereof sold separately, may
be redeemed in the manner hereinafter provided,
by the following persons:
(a) T h e j u d g m e n t o b l i g o r , o r h i s s u c c e s s o r i n
i n t e r e s t i n t h e w h o l e o r a n y part o f t h e p r o p e r t y ;
(b) A c r e d i t o r h a v i n g a l i e n by v i r t u e of an
attachment, judgment or mortgage on the property
sold, or on some part thereof, s u b s e q u e n t to the
lien under w h i c h the property was sold. Such
r e d e e m i n g c r e d i t o r is t e r m e d a r e d e m p t i o n e r . (29a)
Sec. 28. Time and manner of, and amounts payable

on, successive redemptions; notice to be given and filed.
— The j u d g m e n t obligor, or r e d e m p t i o n e r , may
r e d e e m t h e p r o p e r t y from t h e p u r c h a s e r , a t a n y t i m e
w i t h i n o n e (1) y e a r from t h e d a t e o f t h e r e g i s t r a t i o n
o f t h e c e r t i f i c a t e o f sale, b y p a y i n g t h e p u r c h a s e r
t h e a m o u n t of h i s p u r c h a s e , w i t h o n e per centum
per m o n t h i n t e r e s t t h e r e o n i n a d d i t i o n , u p t o t h e
time of redemption, together with the amount of any
assessments or taxes which the purchaser may have
paid t h e r e o n after p u r c h a s e , a n d i n t e r e s t o n s u c h
last n a m e d a m o u n t at the same rate; and if the
p u r c h a s e r be a l s o a c r e d i t o r h a v i n g a prior l i e n to
that of the redemptioner, other than the judgment
509
under which such purchase was made, the amount

of such other lien, with interest.
Property so redeemed may again be redeemed
w i t h i n s i x t y (60) d a y s after t h e l a s t r e d e m p t i o n u p o n
p a y m e n t of the s u m paid on the last redemption,
w i t h t w o per centum t h e r e o n in a d d i t i o n , a n d t h e
a m o u n t o f a n y a s s e s s m e n t s o r t a x e s w h i c h t h e last
r e d e m p t i o n e r may h a v e paid t h e r e o n after
r e d e m p t i o n b y h i m , w i t h i n t e r e s t o n s u c h last n a m e d
amount, and in addition, the a m o u n t of any liens
held by said last redemptioner prior to his own, with
i n t e r e s t . T h e p r o p e r t y m a y b e a g a i n , a n d a s often
as a r e d e m p t i o n e r is so d i s p o s e d , r e d e e m e d from any
p r e v i o u s r e d e m p t i o n e r w i t h i n s i x t y (60) d a y s after
the last redemption, on paying the sum paid on the
l a s t p r e v i o u s r e d e m p t i o n , w i t h t w o per centum
t h e r e o n in addition, and the amounts of any
a s s e s s m e n t s or taxes which the last previous
r e d e m p t i o n e r paid after the r e d e m p t i o n thereon,
with interest thereon, and the amount of any liens
held by the last redemptioner prior to his own, with
interest.
Written notice of any redemption must be given
to the officer w h o m a d e the sale and a duplicate
filed w i t h t h e r e g i s t r y o f d e e d s o f t h e p l a c e , a n d i f
any a s s e s s m e n t s or taxes are paid by the
redemptioner or if he has or acquires any lien other
than that upon which the redemption was made,
notice thereof must in like m a n n e r be given to the
officer a n d filed w i t h t h e r e g i s t r y o f d e e d s ; i f s u c h
n o t i c e b e n o t filed, t h e p r o p e r t y m a y b e r e d e e m e d
without paying such assessments, taxes, or liens.
(30a)
S e c . 29. Effect of redemption by judgment obligor,

and a certificate to be delivered and recorded thereupon;
to whom payments on redemption made. — If t h e
510
judgment obligor redeems, he must make the same

p a y m e n t s as a r e r e q u i r e d to effect a r e d e m p t i o n by
a r e d e m p t i o n e r , w h e r e u p o n , no further r e d e m p t i o n
shall b e a l l o w e d a n d h e i s r e s t o r e d t o h i s e s t a t e . T h e
person to w h o m the redemption payment is made
must e x e c u t e and deliver to him a certificate of
r e d e m p t i o n a c k n o w l e d g e d before a n o t a r y p u b l i c or
o t h e r officer a u t h o r i z e d t o t a k e a c k n o w l e d g m e n t s
of c o n v e y a n c e of real property. Such certificate
m u s t b e filed a n d r e c o r d e d i n t h e r e g i s t r y o f d e e d s
of the place in which the property is situated, and
the registrar of d e e d s must note the record thereof
on the margin of the record of the certificate of sale.
The p a y m e n t s m e n t i o n e d in this and the last
preceding sections may be made to the purchaser
o r r e d e m p t i o n e r , o r for h i m t o t h e officer w h o m a d e
t h e s a l e . (31a)
Sec. 30. Proof required of redemptioner. — A

r e d e m p t i o n e r m u s t p r o d u c e t o t h e officer, o r p e r s o n
from w h o m h e s e e k s t o r e d e e m , a n d s e r v e w i t h h i s
n o t i c e to t h e officer a c o p y of t h e j u d g m e n t or final
order under w h i c h he claims the right to redeem,
certified by the clerk of the court wherein the
j u d g m e n t or final o r d e r is e n t e r e d , or, if he r e d e e m s
u p o n a m o r t g a g e or o t h e r l i e n , a m e m o r a n d u m of
the record thereof, certified by t h e registrar of d e e d s ,
or an original or certified copy of any assignment
n e c e s s a r y t o e s t a b l i s h h i s c l a i m , a n d a n affidavit
executed by him or his agent, showing the amount
t h e n a c t u a l l y d u e o n t h e lien. (32a)
NOTES
1. T h e " s u c c e s s o r in i n t e r e s t " of t h e j u d g m e n t
debtor, then referred to in Sec. 29(a) (now, Sec. 27[aJ),
includes a person to whom he has transferred his right
511
of r e d e m p t i o n , or one to w h o m he h a s c o n v e y e d his
i n t e r e s t s in t h e property for purposes of redemption, or
one who succeeds to his p r o p e r t y by o p e r a t i o n of law,
or a person w i t h a joint i n t e r e s t in t h e property, or his
spouse or heirs (Magno vs. Viola, et al., 61 Phil. 80)
2. While t h e former Sec. 30 (now, Sec. 28) provided
t h a t t h e period of r e d e m p t i o n was 12 m o n t h s "after the
sale," said period is actually to be reckoned from t h e date
of registration of t h e certificate of sale a n d t h e period has
now been changed to one year. Also, while Sec. 29(b)
defined a r e d e m p t i o n e r as one who h a s a lien by
a t t a c h m e n t or j u d g m e n t , t h e s a m e does not per se create
s u c h l i e n as it is t h e levy p u r s u a n t to s a i d w r i t of
a t t a c h m e n t or j u d g m e n t t h a t c r e a t e s a lien on the
property; hence, t h e definition h a s been r e s t a t e d to read
t h a t such lien is "by virtue" thereof.
3. The second type of proof required of a redemptioner

has been simplified in t h e a m e n d e d Sec. 30 hereof, it being
sufficient to s u b m i t an original or certified copy of any
a s s i g n m e n t n e c e s s a r y to establish his claim, w i t h o u t the
former r e q u i r e m e n t t h a t it be f u r t h e r verified by his
affidavit or t h a t of a subscribing w i t n e s s t h e r e t o . The
affidavit now r e q u i r e d is merely r e g a r d i n g t h e a m o u n t
due.
4. A " r e d e m p t i o n e r " is defined in Sec. 27(b) as a

creditor w i t h a lien subsequent to t h e j u d g m e n t which was
t h e basis of t h e execution sale. If t h e lien of t h e creditor
is prior to t h e j u d g m e n t u n d e r which t h e property was
sold, he is not a r e d e m p t i o n e r a n d , therefore, can not
redeem because his i n t e r e s t s in his lien a r e fully protected,
since any p u r c h a s e r at public auction of said p r o p e r t y
t a k e s t h e s a m e subject to such prior lien which he has to
satisfy. Unlike t h e j u d g m e n t debtor, a redemptioner must
prove his r i g h t to r e d e e m by producing t h e documents
called for by Sec. 30.
512
5. The right of redemption is transferable a n d may

be voluntarily sold (Gomez vs. La Germinal, 37 Phil. 61),
but t h e said right cannot be levied upon by t h e j u d g m e n t
creditor so as to deprive the judgment debtor of any further
rights to t h e property (Lichauco vs. Olegario, 43 Phil.
540; cf. Gonzales Dies vs. Delgado, 37 Phil. 389).
6. Where several parcels of land were sold at public
auction to satisfy a judgment, the defendant may redeem
some of t h e properties by paying the price at which they
were sold at t h e auction sale. Piecemeal redemption is
allowed since, in the redemption of properties sold at an
e x e c u t i o n s a l e , t h e a m o u n t p a y a b l e i s n o longer t h e
judgment debt but the purchase price (Dulay vs. Carriaga,
et al, G.R. No. 52831, July 29, 1983). The rule is different
in t h e r e d e m p t i o n of p r o p e r t i e s m o r t g a g e d w i t h t h e
Philippine National Bank or the Development Bank of the
P h i l i p p i n e s a n d w h i c h w e r e foreclosed j u d i c i a l l y o r
extrajudicially since, under the provisions of their
respective c h a r t e r s , the redemptioner m u s t pay all the
a m o u n t s owed by the debtor on said mortgages (DBP vs.
Mirang, L-29130, Aug. 8, 1975). The same rule applies
to foreclosures by b a n k i n g i n s t i t u t i o n s in view of the
provisions of Sec. 78, R.A. 337 (Ponce de Leon vs. RFC,
L-24571, Dec. 18, 1970).
7. The j u d g m e n t debtor has always one year from
the registration of the certificate of sale within which to
redeem, regardless of w h e t h e r there have been any prior
redemptions and the date of such redemptions; and the
moment said j u d g m e n t debtor redeems, there shall be
no further redemption. The redemptioner, on the other
hand, must redeem within the one-year period, if he is
the first redemptioner, and within 60 days from the last
redemption, if he be a subsequent redemptioner, provided
t h a t the judgment debtor has not exercised his right of
redemption.
513
8. As pointed out in t h e former editions of t h i s work,

Rule 39 t h e n provided t h a t t h e period of redemption was
12 m o n t h s , not one y e a r as s t a t e d in some decisions,
reckoned from t h e d a t e of registration of t h e certificate of
sale. This distinction h a s a s u b s t a n t i a l significance, and
h a s r e s u l t e d in controversial rulings, since a year consists
of 365 d a y s while 12 m o n t h s consist of only 360 days
(Art. 13, Civil Code). Sec. 28 of t h i s Rule h a s accordingly
introduced t h e a m e n d m e n t (of t h e former Sec. 30) t h a t
t h e period of r e d e m p t i o n is one y e a r from t h e registration
of t h e certificate of sale (see Ysmael, et al. vs. CA, et al.,
G.R. No. 132497, Nov. 16, 1999).
9. W h e r e t h e p r o p e r t i e s of t h e defendant were duly

a t t a c h e d a n d such p r e l i m i n a r y a t t a c h m e n t registered and
annotated on t h e certificates of title thereto, said properties
a r e in custodia legis. The extrajudicial foreclosure of a
prior m o r t g a g e on said p r o p e r t i e s a n d t h e issuance of a
w r i t of possession in favor of t h e p u r c h a s e r at the
foreclosure sale, d u r i n g t h e pendency of t h e action wherein
t h e a t t a c h m e n t w a s o r d e r e d , does not defeat t h e lien
acquired by t h e a t t a c h i n g plaintiff. Aside from t h e fact
t h a t s a i d p r o p e r t i e s a r e i n custodia legis a n d t h e
jurisdiction of said court t h e r e o v e r could not be interfered
with by a n o t h e r coordinate and co-equal court, the
a t t a c h i n g creditor h a d acquired by operation of law the
r i g h t of r e d e m p t i o n over t h e foreclosed p r o p e r t y p u r s u a n t
to Sec. 6 of Act 3135. Said a t t a c h i n g creditor may succeed
to t h e incidental r i g h t s of t h e debtor, such as t h e right of
redemption. The fact t h a t t h e debtor subsequently waived
his r i g h t of r e d e m p t i o n to a t h i r d person is of no moment
since, by t h a t time, he had no more right to waive
(Consolidated Bank & Trust Corp. vs. IAC, et al.,
G.R. No. 73976, May 29, 1987; cf. Top Rate International
Service vs. IAC, et al., G.R. No. 67496, June 7, 1986;
Note 6 u n d e r Sec. 7, Rule 57).
514
RULE 39 EXECUTION. SATISFACTION SECS. 31-32
10. The periods for redemption in Sec. 28 a r e not

extendible or i n t e r r u p t e d . The p a r t i e s may, however,
agree on a longer period of redemption b u t in such case, it
would be a m a t t e r of c o n v e n t i o n a l r e d e m p t i o n (Lazo
vs. Republic Surety & Insurance Co., Inc., supra) and not
the legal redemption u n d e r Sec. 28.
1 1 . It h a s moreover been ruled t h a t u n d e r a s t a t u t e

l i m i t i n g t h e r i g h t of r e d e m p t i o n , t h e p e n d e n c y of an
action, brought in good faith and relating to the validity
of t h e sale of t h e p r o p e r t y involved, tolls t h e t e r m of
t h e r i g h t of r e d e m p t i o n (Consolidated Bank & Trust
Corp. vs. IAC, et al., supra, citing Ong Chua vs. Carr,
53 Phil. 975; see Lichauco vs. Olegario, supra).
Sec. 3 1 . Manner of using premises pending

redemption; waste restrained. — U n t i l t h e e x p i r a t i o n
o f t h e t i m e a l l o w e d for r e d e m p t i o n , t h e c o u r t m a y ,
as in other proper cases, restrain the commission
of waste on the property by injunction, on the appli-
cation of the p u r c h a s e r or the j u d g m e n t obligee,
w i t h o r w i t h o u t n o t i c e ; b u t i t i s n o t w a s t e for a
person in possession of the property at the time of
t h e sale, or entitled to possession afterwards, d u r i n g
t h e p e r i o d a l l o w e d for r e d e m p t i o n , t o c o n t i n u e t o
use it in the same m a n n e r in which it was previously
used, or to use it in the ordinary course of hus-
bandry; or to make the necessary repairs to
buildings thereon while he occupies the property.
(33a)
Sec. 32. Rents, earnings and income of property

pending redemption. — The purchaser or a
redemptioner shall not be entitled to receive the
r e n t s , e a r n i n g s a n d income of t h e p r o p e r t y sold on
execution, or the value of the use and occupation
thereof when such property is in the possession of
a t e n a n t . All r e n t s , e a r n i n g s a n d i n c o m e d e r i v e d
515
from t h e property p e n d i n g r e d e m p t i o n shall belong

to the j u d g m e n t obligor until the expiration of his
p e r i o d o f r e d e m p t i o n . (34a)
NOTE
1. D u r i n g t h e period of redemption, t h e j u d g m e n t
debtor is entitled to t h e possession and to receive the fruits
of t h e p r e m i s e s a n d is not r e q u i r e d to pay r e n t to the
creditor or p u r c h a s e r (Dizon vs. Gaborro, et al., L-36821,
June 22, 1978). In fact, it had earlier been ruled t h a t if
the sheriff p u t s the p u r c h a s e r at public auction in
p o s s e s s i o n of t h e l a n d d u r i n g t h e o n e - y e a r p e r i o d of
r e d e m p t i o n , a n a c t i o n for forcible e n t r y lies a g a i n s t
t h e sheriff a n d said p u r c h a s e r (Fabico vs. Ong Pauco,
43 Phil. 572).
Despite s u c h t h e o r y a n d legal r a t i o n a l e , since the
j u d g m e n t obligor is still t h e owner of t h e p r e m i s e s and
r e n t a l s c o n s t i t u t e civil fruits in law, t h e former Sec. 34
of t h i s Rule provided t h a t if t h e p r e m i s e s a r e r e n t e d out to
a third person, t h e p u r c h a s e r or redemptioner was entitled
to t h e r e n t a l s , t h e s a m e to be s u b s e q u e n t l y accounted for
and to be considered as a credit upon the redemption price.
Aside from t h e dubious basis of such a rule, t h a t provision
further entailed complicated rules on how to credit the
r e n t a l s a n d t h e possible effects on extension of the right
of r e d e m p t i o n .
The p r e s e n t Sec. 32 has p u t things a r i g h t by
providing for t h e rule t h a t all r e n t s , e a r n i n g s and income
d e r i v e d from t h e p r o p e r t y p e n d i n g r e d e m p t i o n s h a l l
belong to t h e j u d g m e n t obligor u n t i l t h e expiration of his
period of redemption, and not to the p u r c h a s e r or
redemptioner.
Sec. 33. Deed and possession to be given at

expiration of redemption period; by whom executed or
given. — If no r e d e m p t i o n be m a d e w i t h i n o n e (1) y e a r
516
from t h e d a t e o f t h e r e g i s t r a t i o n o f t h e c e r t i f i c a t e o f
sale, t h e p u r c h a s e r i s e n t i t l e d t o a c o n v e y a n c e a n d
p o s s e s s i o n of t h e p r o p e r t y ; or, if so r e d e e m e d
w h e n e v e r s i x t y (60) d a y s h a v e e l a p s e d a n d n o o t h e r
redemption has been made, and notice therefor
g i v e n , a n d t h e t i m e for r e d e m p t i o n h a s e x p i r e d , t h e
last r e d e m p t i o n e r i s e n t i t l e d t o t h e c o n v e y a n c e a n d
p o s s e s s i o n , b u t i n all c a s e s t h e j u d g m e n t o b l i g o r
s h a l l h a v e t h e e n t i r e p e r i o d o f o n e (1) y e a r from t h e
date of the registration of the sale to r e d e e m the
p r o p e r t y . T h e d e e d s h a l l be e x e c u t e d by t h e officer
m a k i n g t h e s a l e o r b y h i s s u c c e s s o r i n office, a n d i n
the latter case shall have the same validity as
t h o u g h t h e officer m a k i n g t h e sale h a d c o n t i n u e d
in office a n d e x e c u t e d it.
Upon the expiration of the right of redemption,
the purchaser or redemptioner shall be substituted
t o a n d a c q u i r e all t h e r i g h t s , t i t l e , i n t e r e s t a n d
claim of the judgment obligor to the property as of
t h e t i m e o f t h e levy. T h e p o s s e s s i o n o f t h e p r o p e r t y
shall b e g i v e n t o t h e p u r c h a s e r o r last r e d e m p t i o n e r
by t h e s a m e officer u n l e s s a t h i r d party is a c t u a l l y
holding the property adversely to the judgment
obligor. (35a)
NOTES
1. This section was taken from the former Sec. 35

of this Rule but contains two important differences there-
from. T h e r e v i s e d r u l e i s t h a t t h e p u r c h a s e r o r
redemptioner shall now be substituted for the judgment
obligor upon the expiration of the right of redemption.
Consequently, he shall acquire all the rights, title, interests
and claims of the judgment obligor to the property as of
the time of the levy.
U n d e r t h e f o r m e r S e c . 35, t h e p u r c h a s e r o r
redemptioner is substituted for the judgment obligor only
517
"upon t h e e x e c u t i o n a n d delivery of (the) deed" to be

executed by t h e officer who m a d e t h e sale of the property.
F u t h e r m o r e , he shall acquire t h e right, title, i n t e r e s t and
claim of t h e j u d g m e n t debtor to t h e property as of t h e time
of t h e levy, "except as a g a i n s t t h e j u d g m e n t debtor in
possession in which case t h e substitution shall be effective
as of t h e d a t e of t h e deed."
The former rule, t h u s , placed too much s t r e s s upon
t h e physical act of execution of t h e deed of sale, both on
t h e m a t t e r of s u b s t i t u t i o n a n d acquisition of rights, as
a g a i n s t t h e a u t o m a t i c effect t h e r e o n by t h e expiration of
t h e r i g h t of r e d e m p t i o n w h i c h is a m a t t e r of t i m e or
c o m p u t a t i o n . T h i s a m e n d e d section, therefore, avoids
u n n e c e s s a r y controversy and complications on a simple
m a t t e r of p r o c e d u r e .
2. The execution of t h e certificate of sale of personal

p r o p e r t y sold at public auction "conveys to t h e p u r c h a s e r
all t h e r i g h t s which t h e debtor h a d in such property as of
t h e d a t e of t h e levy on e x e c u t i o n or p r e l i m i n a r y
a t t a c h m e n t " (Sec. 24) and, in t h e case of real property,
said p u r c h a s e r "shall be s u b s t i t u t e d to a n d acquire all the
r i g h t s , title, i n t e r e s t a n d claim of t h e j u d g m e n t debtor to
t h e p r o p e r t y as of t h e time of t h e levy" (Sec. 33).
These provisions, accordingly, show t h a t t h e rule of
caveat emptor applies to judicial sales of both real and
p e r s o n a l p r o p e r t y a n d t h e sheriff does not w a r r a n t the
title of t h e p r o p e r t y t h u s sold (Pablico vs. Ong Pauco,
43 Phil. 572). Nevertheless, a person dealing with
registered land is charged w i t h notice only of liens and
e n c u m b r a n c e s noted on t h e certificate of title. Hence,
t h e p u r c h a s e r of r e g i s t e r e d land in t h e execution sale
h a s t h e b e t t e r r i g h t o v e r t h e v e n d e e i n a p r i o r con-
ventional sale of said land w h e r e such private sale was
n o t r e g i s t e r e d in line w i t h t h e p r o v i s i o n s of Sec. 5 1 ,
P.D. 1529 (Property Registration Decree ) a n d Art. 1514,
Civil Code (Campillo vs. CA, et al., G.R. No. 56483,
May 29, 1984).
518
3. The same provisions also make t h e right of t h e

p u r c h a s e r to t h e p r o p e r t y r e t r o a c t to t h e d a t e of t h e
levy. This fixing of t h e date is important, because, since
the sale retroacts to the date of the levy, any disposition
or lien in favor of t h i r d p e r s o n s c r e a t e d by a c t s of
the debtor after t h e levy on real property shall not be
binding a g a i n s t the p u r c h a s e r to whom a final deed of
sale was subsequently issued (Guerrero vs. Agustin, et
al., L-18117, April 27, 1963).
4. After t h e deed of sale h a s been executed, t h e

vendee t h e r e i n is e n t i t l e d to a w r i t of possession b u t
the same shall issue only where it is the j u d g m e n t debtor
or his successors in i n t e r e s t who a r e in possession of
the p r e m i s e s . W h e r e t h e land is occupied by a t h i r d
party, the court should order a hearing to determine the
n a t u r e of h i s a d v e r s e p o s s e s s i o n (Guevarra, et al.
vs. Ramos, et al., L-24358, Mar. 31, 1971; Unchuan vs.
CA, et al., G.R. 78715, May 31, 1988). The writ shall
issue where the period of redemption has expired (Banco
Filipino vs. IAC, et al., G.R. No. 68878, April 8, 1986).
5. A writ of possession may be issued only in a land
registration proceeding, in extrajudicial foreclosure of a
real e s t a t e mortgage and in judicial foreclosure if t h e
debtor is in possession and no third person, not a party to
the suit, had intervened (Gatchalian vs. Arlegui, L-41360,
Feb. 17, 1977). It has been held, however, t h a t a writ
of possession is a complement of the writ of execution.
Hence, if u n d e r a final judgment, the prevailing p a r t y
a c q u i r e s a b s o l u t e o w n e r s h i p over t h e r e a l p r o p e r t y
involved, t h e w r i t m a y be i s s u e d for him to o b t a i n
possession without the need of filing a separate action
a g a i n s t t h e p o s s e s s o r (Olego vs. Rebueno, L-39350,
Oct. 29, 1975). A w r i t of possession should also be
sought from and issued by the court where a third party
is holding the property adversely to the judgment debtor
(Roxas, et al. vs. Buan, et al., G.R. No. 53778,
519
RULE 39 R E M E D I A L LAW C O M P E N D I U M SECS. 34
Nov. 8, 1988; cf. China Banking Corp. vs. Ordinario, G.R.

No. 121943, Mar. 24, 2003).
S e c . 34. Recovery of price if sale not effective; revival

of judgment. — If t h e p u r c h a s e r of r e a l p r o p e r t y sold
o n e x e c u t i o n , o r h i s s u c c e s s o r i n i n t e r e s t , fails t o
recover the possession thereof, or is evicted
therefrom, in c o n s e q u e n c e of irregularities in the
proceedings c o n c e r n i n g the sale, or because the
judgment has been reversed or set aside, or because
the party has vindicated his claim to the property,
he may on motion in the same action or in a separate
action recover from t h e j u d g m e n t obligee the price
paid, w i t h interest, or so m u c h thereof as has not
b e e n d e l i v e r e d to t h e j u d g m e n t obligor; or he may,
on motion have the original judgment revived in
h i s n a m e for t h e w h o l e p r i c e w i t h i n t e r e s t , o r s o
much thereof as has been delivered to the judgment
obligor. The j u d g m e n t so revived shall have the
same force and effect as an original judgment
w o u l d h a v e a s o f t h e d a t e o f t h e r e v i v a l a n d n o more.
(36a)
NOTE
1. W h e n t h e sale w a s not effective u n d e r the cir-

c u m s t a n c e s in t h i s section, it was held t h a t t h e p u r c h a s e r
may (a) b r i n g an action a g a i n s t t h e j u d g m e n t creditor
for t h e a m o u n t p a i d b y h i m a t t h e j u d i c i a l s a l e , o r
(b) file a motion in t h e s a m e action w h e r e execution was
issued for t h e revival of t h e j u d g m e n t in his name against
t h e j u d g m e n t debtor, or (c) b r i n g an action to recover
possession of t h e property sold to him at public auction
(Belleza vs. Zandaga, 98 Phil. 702).
The first a l t e r n a t i v e has been modified by the present
a m e n d e d section in t h e sense t h a t t h e p u r c h a s e r may now
also file a motion in t h e s a m e action, aside from his right
520
to file a s e p a r a t e action, to recover from the j u d g m e n t

obligee the a m o u n t paid by said purchaser at t h e judicial
sale.
Sec. 35. Right to contribution or reimbursement. —

When property liable to an execution against
several persons is sold thereon, and more than a
due proportion of the judgment is satisfied out of
the proceeds of the sale of the property of one of
them, or one of t h e m pays, without a sale, more than
h i s p r o p o r t i o n , he m a y c o m p e l a c o n t r i b u t i o n from
the others; and w h e n a judgment is upon an
o b l i g a t i o n o f o n e o f t h e m , a s s e c u r i t y for a n o t h e r ,
a n d t h e s u r e t y p a y s t h e a m o u n t , o r a n y part thereof,
e i t h e r b y s a l e o f h i s p r o p e r t y o r before s a l e , h e m a y
c o m p e l r e p a y m e n t from t h e p r i n c i p a l . (37a)
Sec. 36. Examination of judgment obligor when

judgment unsatisfied. — W h e n t h e r e t u r n of a w r i t of
execution issued against property of a judgment
obligor, o r a n y o n e o f s e v e r a l o b l i g o r s i n t h e s a m e
judgment, shows that the judgment remains
unsatisfied, in whole or in part, the j u d g m e n t
o b l i g e e , a t a n y t i m e after s u c h r e t u r n i s m a d e , s h a l l
be entitled to an order from the court which
rendered the said judgment, requiring such
judgment obligor to appear and be examined
c o n c e r n i n g h i s p r o p e r t y a n d i n c o m e before s u c h
c o u r t or before a c o m m i s s i o n e r a p p o i n t e d by it, at
a specified time and place; and proceedings may
t h e r e u p o n be h a d for t h e a p p l i c a t i o n of t h e p r o p e r t y
and income of the judgment obligor towards the
satisfaction of the judgment. But no judgment
obligor s h a l l be so r e q u i r e d to a p p e a r before a c o u r t
or commissioner outside the province or city in
w h i c h s u c h o b l i g o r r e s i d e s or is found. (38a)
521
NOTE
1. Formerly, t h e examination of a j u d g m e n t obligor

may be a u t h o r i z e d by "an order from t h e j u d g e of the
C o u r t of F i r s t I n s t a n c e of t h e p r o v i n c e in w h i c h t h e
j u g m e n t w a s r e n d e r e d or of t h e p r o v i n c e from which
t h e execution was r e t u r n e d . " The a l t e r n a t i v e mode was
c o n s i d e r e d u n w i e l d y since a p e t i t i o n , a n d not a mere
m o t i o n , h a d t o b e filed i n t h e o t h e r c o u r t for t h a t
purpose, aside from t h e fact t h a t to a c e r t a i n e x t e n t the
case may be undermined or interfered with. This amended
section now provides t h a t t h e order for e x a m i n a t i o n of
t h e j u d g m e n t obligor s h a l l be issued only by t h e court
which r e n d e r e d t h e j u d g m e n t .
S e c . 37. Examination of obligor of judgment obligor.

— W h e n t h e r e t u r n of a w r i t of e x e c u t i o n a g a i n s t
the property of a j u d g m e n t obligor shows that the
j u d g m e n t r e m a i n s u n s a t i s f i e d , i n w h o l e o r i n part,
a n d u p o n p r o o f t o t h e c o u r t w h i c h i s s u e d t h e writ,
that a person, corporation, or other juridical entity,
has property of such judgment obligor or is
indebted to him, the court may, by an order, require
such person, corporation, or other juridical entity,
o r a n y officer o r m e m b e r t h e r e o f , t o a p p e a r before
t h e c o u r t or a c o m m i s s i o n e r a p p o i n t e d by it, at a
time and place within the province or city where
such debtor resides or is found, and be examined
c o n c e r n i n g the same. The service of the order shall
b i n d all c r e d i t s d u e t h e j u d g m e n t o b l i g o r a n d all
m o n e y and property of the j u d g m e n t obligor in the
possession or in the control of such person,
corporation, or juridical entity from the time of
service; and the court may also require notice of
such p r o c e e d i n g s to be given to any party to the
a c t i o n i n s u c h m a n n e r a s i t m a y d e e m p r o p e r . (39a)
522
NOTE
1. As a m a t t e r of consideration to the obligor of a

j u d g m e n t obligor who is sought to be examined, such
examination is now required to be conducted by t h e court
which issued the writ of execution, or by a commissioner
appointed by it, within t h e province or city where such
debtor resides or is found. Under the former rule, such
examination was allowed in any place "within the province
in which the order is served" and this could be used to
h a r a s s o r u n d u l y inconvenience such d e b t o r w i t h o u t
s u b s e r v i n g t h e p u r p o s e thereof, e s p e c i a l l y w h e r e a
juridical entity is involved and the papers needed for the
examination a r e at its home office.
Sec. 38. Enforcement of attendance and conduct of

examination. — A p a r t y or o t h e r p e r s o n m a y be
compelled, by an order or subpoena, to attend
before the court or commissioner to testify as
provided in the two preceding sections, and upon
failure to obey such order or subpoena or to be
s w o r n , or to a n s w e r as a w i t n e s s or to s u b s c r i b e h i s
d e p o s i t i o n , m a y b e p u n i s h e d for c o n t e m p t a s i n
other cases. Examinations shall not be unduly
prolonged, but the proceedings may be adjourned
from t i m e t o t i m e , u n t i l t h e y are c o m p l e t e d . I f t h e
e x a m i n a t i o n is before a c o m m i s s i o n e r , he m u s t t a k e
it in w r i t i n g and certify it to t h e court. All
e x a m i n a t i o n s and a n s w e r s before a court or
commissioner must be under oath, and w h e n a
corporation or other juridical entity answers, it
m u s t b e o n t h e o a t h o f a n a u t h o r i z e d officer o r
a g e n t thereof. (40a)
Sec. 39. Obligor may pay execution against obligee.

— After a w r i t of e x e c u t i o n a g a i n s t p r o p e r t y h a s
been issued, a person indebted to the judgment
523
o b l i g o r m a y pay t o t h e s h e r i f f h o l d i n g t h e w r i t o f
execution the amount of his debt or so much thereof
a s m a y b e n e c e s s a r y t o satisfy t h e j u d g m e n t , i n t h e
manner prescribed in section 9 of this Rule, and the
s h e r i f f ' s r e c e i p t s h a l l be a s u f f i c i e n t d i s c h a r g e for
the a m o u n t so paid or directed to be credited by the
j u d g m e n t o b l i g e e o n t h e e x e c u t i o n . (41a)
Sec. 40. Order for application of property and

income to satisfaction of judgment. — T h e c o u r t m a y
order any property of the judgment obligor, or
m o n e y due him, not e x e m p t from execution, in the
h a n d s of either himself or a n o t h e r person, or of a
corporation or other juridical entity, to be applied
to the satisfaction of the judgment, subject to any
prior r i g h t s o v e r s u c h p r o p e r t y .
If, u p o n i n v e s t i g a t i o n o f h i s c u r r e n t i n c o m e a n d
expenses, it appears that the earnings of the
j u d g m e n t o b l i g o r for h i s p e r s o n a l s e r v i c e s a r e
m o r e t h a n n e c e s s a r y for t h e s u p p o r t o f h i s family,
the court may order that he pay the judgment
i n fixed m o n t h l y i n s t a l l m e n t s , a n d u p o n h i s failure
to pay any such installment w h e n due without
g o o d e x c u s e , m a y p u n i s h h i m for i n d i r e c t c o n t e m p t .
(42a)
Sec. 41. Appointment of receiver. — T h e c o u r t m a y

appoint a receiver of the property of the judgment
o b l i g o r , a n d it m a y a l s o forbid a t r a n s f e r or o t h e r
d i s p o s i t i o n of, o r a n y i n t e r f e r e n c e w i t h , t h e
p r o p e r t y o f t h e j u d g m e n t o b l i g o r n o t e x e m p t from
e x e c u t i o n . (3a)
Sec. 42. Sale of ascertainable interest of judgment

obligor in real estate. — If it a p p e a r s t h a t t h e j u d g m e n t
obligor has an interest in real estate in the place in
which p r o c e e d i n g s are had, as mortgagor or
524
mortgagee or otherwise, and his interest therein

can be ascertained without controversy, the
receiver may be ordered to sell and convey such
real e s t a t e o r t h e i n t e r e s t o f t h e o b l i g o r t h e r e i n ,
a n d s u c h s a l e s h a l l b e c o n d u c t e d i n all r e s p e c t s i n
t h e s a m e m a n n e r a s i s p r o v i d e d for t h e s a l e o f real
estate upon execution, and the proceedings thereon
s h a l l b e a p p r o v e d b y t h e c o u r t before t h e e x e c u t i o n
of t h e d e e d . (44a)
Sec. 43. Proceedings when indebtedness denied or

another person claims the property. — If it a p p e a r s t h a t
a p e r s o n or c o r p o r a t i o n , a l l e g e d to h a v e p r o p e r t y
of the judgment obligor or to be indebted to him
claims an interest in the property adverse to him
or denies the debt, the court may authorize, by an
o r d e r m a d e t o t h a t effect, t h e j u d g m e n t o b l i g e e t o
institute an action against such person or
c o r p o r a t i o n for t h e r e c o v e r y o f s u c h i n t e r e s t o r
d e b t , forbid a t r a n s f e r or o t h e r d i s p o s i t i o n of s u c h
i n t e r e s t o r d e b t w i t h i n o n e h u n d r e d t w e n t y (120)
days from notice of the order, and may punish
d i s o b e d i e n c e o f s u c h o r d e r a s for c o n t e m p t . S u c h
o r d e r m a y be m o d i f i e d or v a c a t e d at a n y t i m e by
t h e c o u r t w h i c h i s s u e d it, or by t h e c o u r t in w h i c h
t h e a c t i o n i s b r o u g h t , u p o n s u c h t e r m s a s may b e
just. (45a)
NOTES
1. The foregoing provisions provide the remedies

where t h e writ of execution is returned unsatisfied or
where the third party denies his debt or the ownership of
the debtor. It will be noted that, under Sec. 43, the court
may authorize the judgment obligee to bring an action
against the person or corporation alleged to have property
of the judgment debtor. This is an example of a "party
authorized by statute" to sue, even if he is not the real
525
party in interest (see Sec. 3, Rule 3).

However, u n l i k e t h e former Sec. 45 of t h i s Rule
which permitted t h e court to "forbid a transfer or other
disposition of such i n t e r e s t or debt until an action can
be commenced and prosecuted to j u d g m e n t , " its
p r e s e n t c o u n t e r p a r t section limits such prohibition to 120
days from notice of the order. This would avoid unfair
prejudice to t h e claiming p a r t y due to t h e indefinite period
originally provided and, besides, t h e court may always
modify or extend its aforestated orders when necessary.
2. Although t h e r e may be instances wherein some
of t h e foregoing proceedings s u p p l e m e n t a r y to execution
may not be conducted by t h e court which r e n d e r e d the
judgment, i.e., w h e r e t h e j u d g m e n t obligor or his obligor
cannot be required to a p p e a r for examination outside the
province or city w h e r e they reside (Secs. 36 and 37) and
consequently cannot be compelled to a p p e a r before said
court, it is still t h e court which r e n d e r e d said j u d g m e n t
which should t a k e t h e necessary m e a s u r e s to reach the
properties of t h e j u d g m e n t obligor by t h e issuance of an
alias w r i t of execution (Potenciano vs. Mariano, et al.,
L-30904, Mar. 6, 1980).
3. A case in which e x e c u t i o n h a s b e e n issued is

regarded as still pending and the court which rendered
t h e j u d g m e n t h a s a general supervisory control over the
execution proceedings with t h e right to d e t e r m i n e every
question of law or fact involved t h e r e i n . Only when the
j u d g m e n t h a s been fully satisfied does t h e s a m e pass
beyond review by said court (Seavan Carrier, Inc., et al.
vs. GTI Sportwear Corp., et al., G.R. No. 65953, July 16,
1985).
4. With regard to receivership as an aid to execution

u n d e r Sec. 41 of t h i s Rule, it h a s b e e n held t h a t the
provisions of Rule 59 are applicable, for instance, to the
procedure, r e q u i r e m e n t s for a bond and the functions of
526
the receiver (Central Sawmills, Inc. vs. Alto Surety &

Insurance Co., Inc., L-24508, April 25, 1969).
Sec. 44. Entry of satisfaction of judgment by clerk of

court. — S a t i s f a c t i o n of a j u d g m e n t s h a l l be e n t e r e d
by the clerk of court in the court docket, and in the
e x e c u t i o n book, upon the return of a writ of
e x e c u t i o n s h o w i n g the full s a t i s f a c t i o n o f t h e
j u d g m e n t , o r u p o n t h e filing o f a n a d m i s s i o n t o t h e
satisfaction of the judgment executed and
acknowledged in the same manner as a conveyance
o f real p r o p e r t y b y t h e j u d g m e n t o b l i g e e o r b y h i s
c o u n s e l u n l e s s a r e v o c a t i o n of h i s a u t h o r i t y is h i e d ,
or upon the endorsement of such admission by the
j u d g m e n t o b l i g e e o r h i s c o u n s e l o n t h e face o f t h e
r e c o r d o f t h e j u d g m e n t . (46a)
Sec. 45. Entry of satisfaction with or without

admission. — W h e n e v e r a j u d g m e n t is s a t i s f i e d in
fact, or o t h e r w i s e t h a n u p o n an e x e c u t i o n , on
demand of the judgment obligor, the judgment
obligee or his counsel must execute and
acknowledge, or indorse, an admission of the
satisfaction as provided in the last preceding
s e c t i o n , a n d after n o t i c e a n d u p o n m o t i o n t h e c o u r t
may order either the judgment obligee or his
counsel to do so, or may order the entry of
satisfaction to be made without such admission.
(47a)
NOTE
1. E n t r y of satisfaction of the j u d g m e n t shall be

made in the court docket and in the execution book on the
bases of:
(a) The r e t u r n of an execution satisfied by action
of the sheriff in accordance with this Rule;
527
RULE 39 R E M E D I A L LAW COMPENDIUM S E C S . 46, 47
(b) An a d m i s s i o n of t h e satisfaction of j u d g m e n t
executed a n d acknowledged in t h e s a m e m a n n e r as a
conveyance of real property by the j u d g m e n t obligee or
his counsel;
(c) T h e i n d o r s e m e n t of s u c h a d m i s s i o n by t h e
j u d g m e n t creditor or his a t t o r n e y on t h e face of the record
of t h e j u d g m e n t ; or
(d) By order of t h e court, upon satisfactory proof of
such satisfaction of j u d g m e n t .
S e c . 46. When principal bound by judgment against

surety. — W h e n a j u d g m e n t is r e n d e r e d a g a i n s t a
p a r t y w h o s t a n d s a s s u r e t y for a n o t h e r , t h e l a t t e r
is also bound from t h e time t h a t he h a s notice of
the action or proceeding, and an opportunity at the
s u r e t y ' s r e q u e s t t o j o i n i n t h e d e f e n s e . (48a)
NOTE
1. The converse of t h i s rule is not t r u e , because in

order t h a t the surety may be bound by the judgment
a g a i n s t his principal, such surety m u s t be impleaded in
the action (Montejo us. Hilario, 58 Phil. 372) or given an
opportunity to be heard, otherwise t h e writ of execution
issued a g a i n s t t h e s u r e t y is void (Luzon Surety Co., Inc.
vs. Beson, et al., L-26865-66, Jan. 30, 1970).
S e c . 47. Effect of judgment or final orders. — T h e

effect o f a j u d g m e n t o r f i n a l o r d e r r e n d e r e d b y a
court of the Philippines, having jurisdiction to
p r o n o u n c e t h e j u d g m e n t or final o r d e r , m a y be as
follows:
(a) In case of a j u d g m e n t or final o r d e r a g a i n s t
a specific t h i n g , or in r e s p e c t to t h e p r o b a t e of a
will, o r t h e a d m i n i s t r a t i o n o f t h e e s t a t e o f a d e c e a s e d
person, or in respect to the personal, political, or
legal condition or s t a t u s of a p a r t i c u l a r person or
528
h i s r e l a t i o n s h i p t o a n o t h e r , t h e j u d g m e n t o r final
order is conclusive upon the title to the thing, the
will o r a d m i n i s t r a t i o n , o r t h e c o n d i t i o n , s t a t u s o r
relationship of the person; however, the probate of
a will or g r a n t i n g of l e t t e r s of a d m i n i s t r a t i o n s h a l l
o n l y be prima facie e v i d e n c e of t h e d e a t h of t h e
testator or intestate;
(b) In o t h e r c a s e s , t h e j u d g m e n t or final o r d e r
is, w i t h r e s p e c t t o t h e m a t t e r d i r e c t l y a d j u d g e d o r
as to any other matter that could have been raised
in relation thereto, conclusive between the parties
and their successors in interest by title subsequent
to the c o m m e n c e m e n t of the action or special
p r o c e e d i n g , l i t i g a t i n g for t h e s a m e t h i n g a n d u n d e r
the same title and in the same capacity; and
(c) I n a n y o t h e r l i t i g a t i o n b e t w e e n t h e s a m e
parties or their successors in interest, that only is
d e e m e d to h a v e b e e n a d j u d g e d in a former j u d g m e n t
o r final o r d e r w h i c h a p p e a r s u p o n its face t o h a v e
been so adjudged, or which was actually and
necessarily included therein or necessary thereto.
(49a)
NOTES
1. This section enunciates the rules on res judicata

[or b a r by f o r m e r j u d g m e n t , or d i r e c t e s t o p p e l by
judgment] and conclusiveness of judgment [or estoppel by
verdict, or estoppel by record, or collateral estoppel by
judgment] (Manila Electric Co. vs. CA, et al., L-33794,
May 31, 1982). Res judicata is further referred to as,
because it has the effect of, the doctrine on preclusion of
claims. Conclusiveness of j u d g m e n t has the effect of
preclusion only of issues, and is also referred to as the
rule of outer action pendant. Par. (a) is the rule on res
judicata in judgments in rem; par. (b) is the rule on res
judicata in judgments in personam; and par. (c) is the
529
rule on conclusiveness of judgment.

2. In res judicata, the parties and the causes of action
in both actions a r e identical or substantially the same.
The j u d g m e n t in t h e first action is conclusive as to every
m a t t e r offered and received t h e r e i n and as to any other
m a t t e r admissible t h e r e i n a n d which might have been
offered for t h a t purpose, hence it is an absolute b a r to a
subsequent action for t h e same cause (Yusingco, et al. vs.
Ong Hing Lian, infra; Vergara vs. Roque, et al., L-32984,
Aug. 26, 1977).
In conclusiveness of j u d g m e n t , t h e p a r t i e s in both
actions m a y be t h e s a m e b u t t h e c a u s e s of action a r e
different. Hence, t h e j u d g m e n t in t h e first is binding
only w i t h r e s p e c t t o t h e m a t t e r s a c t u a l l y r a i s e d a n d
adjudged t h e r e i n (see Pehalosa vs. Tuason, 22 Phil. 303;
Viray vs. Marinas, et al., L-33168, Jan. 11, 1973) and is
not a b a r to a n o t h e r action between t h e same p a r t i e s but
on a different cause of action.
3. The requisites for res judicata a r e :

(a) The former j u d g m e n t or order m u s t be final;
(b) It m u s t be a j u d g m e n t or order on the merits,
t h a t is, it was rendered after a consideration of the evidence
or stipulations s u b m i t t e d by t h e p a r t i e s at t h e trial of the
case;
(c) It m u s t have been rendered by a court, having
jurisdiction over t h e subject-matter and t h e parties; and
(d) T h e r e m u s t be, b e t w e e n t h e first a n d second
a c t i o n s , i d e n t i t y of p a r t i e s , of s u b j e c t - m a t t e r a n d of
cause of action. This requisite is satisfied if the two actions
a r e substantially between t h e same p a r t i e s (see Nator vs.
CIR, L-16671, Mar. 30, 1962; Malvar vs. Palingayan,
L-24136, Sept. 27, 1966; Yusingco, et al. vs. Ong Hing
Lian, L-26523, Dec. 24, 1971; Aroc vs. PHHC, L-39674,
Jan. 31, 1978; Gitgano vs. Borromeo, et al., L-40429,
Nov. 29, 1984).
530
RULE 39 EXECUTION. SATISFACTION SEC. 47
To be more accurate, t h e first r e q u i r e m e n t should

properly state t h a t the former judgment or final order must
be final and executory (see notes under Sec. 1, Rule 39).
Regarding t h e second requisite, note should be t a k e n
of t h e fact t h a t , a l t h o u g h t h e r e h a s been no t r i a l or
p r e s e n t a t i o n a n d consideration of evidence t h e r e i n , a
dismissal of the complaint under the circumstances
provided in Sec. 3, Rule 17 shall have t h e effect of an
adjudication of t h e case on the merits, unless otherwise
declared by the court. The same rule applies when t h e
case is dismissed for non-suit due to the unjustified failure
of t h e plaintiff to a p p e a r at t h e p r e - t r i a l of h i s case
(Sec. 5, Rule 16).
The dismissal by the Supreme Court of a petition for
review on certiorari t h r o u g h a minute resolution is an
adjudication on t h e m e r i t s and c o n s t i t u t e s a b a r to a
relitigation of t h e case u n d e r t h e rule of res judicata
(Commercial Union Ass. Co., Ltd., et al. vs. Lepanto
Consolidated Mining Co., et al., L-43342, Oct. 30, 1978;
Sy vs. Tuvera, etc., et al., G.R. No. 76639, July 16, 1987).
4. There is identity of parties, not only where the

parties in both actions are the same, but also where the
actions are between those in privity with them, as between
t h e i r successors in i n t e r e s t by title s u b s e q u e n t to the
commencement of the action, litigating for the same thing
and under the same title and in the same capacity, or where
there is substantial identity even if there are additional
parties (see Aquino vs. Sanvictores, 89 Phil. 532; Hanopol
vs. Pilapil, L-19248, Feb. 28, 1963; Cantillana vs. Heirs
of Frank Scott, L-39450, Aug. 29, 1980), especially so
where the additional party was not a proper party in the
first or the second action (Mallari, et al. vs. CA, et al.,
L-26467, July 15,1981), or is a mere nominal party (Medija
vs. Patcho, et al., L 30310, Oct. 23, 1984). See further
t h e i l l u s t r a t i v e c a s e s of Salud vs. CA, et al. (G.R.
No. 100156, J u n e 28, 1994) and Heirs of Vda. de Roxas
531
vs. CA, et al (G.R. No. 138660, Feb. 5, 2004).

W h e r e , however, in a p r i o r case t h e p a r t i e s were
co-defendants w i t h o u t any hostile or conflicting claims
raised in issue or adjudicated as between them, and the
second action is between t h e m as plaintiff and defendant,
t h e j u d g m e n t i n t h e first a c t i o n does not c o n s t i t u t e
res judicata to b a r t h e second action as t h e r e is no identity
of p a r t i e s in b o t h a c t i o n s (Valdez vs. Mendoza, 89
Phil. 83; Carandang, et al. vs. Venturanza, et al., L-41940,
Nov. 21, 1984).
5. T h e r e is i d e n t i t y of c a u s e s of action w h e n the
j u d g m e n t s o u g h t will b e i n c o n s i s t e n t w i t h t h e p r i o r
j u d g m e n t (Tan vs. Arador, et al, L-38745, Aug. 6, 1975)
or if the s a m e evidence will s u s t a i n t h e second action
(1 Martin 161162, citing 34 C.J. 805; Aroc vs. PHHC,
supra; Vda. de Vocal vs. Vda. de Suria, et al, L-26281,
May 31, 1979) even if t h e forms or n a t u r e of t h e two
actions be different (Cayco, et al. vs. Cruz, 106 Phil. 65;
Gitgano vs. Borromeo, et al, supra).
6. The doctrine of res judicata does not apply where

the second action is precisely to a n n u l the j u d g m e n t in
t h e first action, as one of t h e requisites of res judicata is
t h a t t h e r e m u s t be a former valid j u d g m e n t (Almeda vs.
Cruz, 84 Phil. 636; Dayrit vs. Dayrit, et al, 97 Phil. 758).
N e i t h e r does said doctrine apply w h e r e the action is to
a n n u l t h e e x e c u t i o n sale a n d a c t s done i n p u r s u a n c e
thereof as t h e r e is no identity between the parties, subject-
m a t t e r a n d c a u s e of a c t i o n involved in t h e case, t h e
decision wherein was the subject of the challenged
e x e c u t i o n s a l e (Ramos, et al. vs. Pablo, et al, G.R.
No. 53682, Nov. 26, 1986).
Thus, even if t h e p a r t i e s in both actions r e m a i n the
same, t h e r e can be no identity in the subject-matter since
t h a t in the j u d g m e n t sought to be annulled is the thing,
contract, property or wrongful act involved in the action,
while in t h e case for a n n u l m e n t the subject-matter is the
532
j u d g m e n t rendered in t h a t action. Neither can t h e r e be

identity in the causes of action as the cause of action in
the first is the delict or wrong committed by t h e defendant
in violation of t h e primary rights of t h e plaintiff, while
t h a t in t h e a c t i o n for a n n u l m e n t of j u d g m e n t is t h e
wrongful obtention thereof t h r o u g h extrinsic fraud or
despite lack of jurisdiction over the case.
7. The former rule was t h a t a court of concurrent

jurisdiction can not open, modify or vacate t h e j u d g m e n t
of a n o t h e r court as such power is restricted to the court
w h i c h r e n d e r e d t h e j u d g m e n t (Mas vs. Dumaraog,
L-16252, Sept. 29, 1964); neither can a n o t h e r branch of
the same court do so (Sterling Investment Corp. vs. Ruiz,
L-30694, Oct. 31, 1969).
As hereinbefore discussed, the doctrines in these cases
were subsequently abandoned, the Supreme Court holding
t h a t a Court of First Instance or a branch thereof had the
authority and jurisdiction to take cognizance of and to act
in a suit to a n n u l a final and executory judgment or order
rendered by a n o t h e r Court of First Instance or branch
thereof (Dulap, et al. vs. CA, et al, L-28306, Dec. 18,
1971), a n d t h e d o c t r i n e s in Dumaraog a n d Sterling
Investment Corporation were set aside, since to sustain
the same would a m o u n t to judicial legislation (Gianan
vs. Imperial, et al, L-37963, Feb. 28, 1974). This was
reiterated in Francisco, et al. vs. Aquino, et al. (L-33235,
July 22, 1976), although in Manalo vs. Mariano, et al.
(L-33850, J a n . 22, 1976), it was a g a i n held t h a t t h e
jurisdiction to a n n u l the judgment of a branch of a Court
of First Instance belongs to t h a t branch alone.
Subsequently, the doctrine in Dulap was reiterated in
Singson, et al. vs. Saldajeno, et al. (L-27343, Feb. 28,
1979).
The conflicting d o c t r i n e s in t h e aforesaid cases
have now been s e t at rest. U n d e r B.P. Blg. 129, the
I n t e r m e d i a t e Appellate Court shall exercise exclusive
533
o r i g i n a l j u r i s d i c t i o n over a c t i o n s for t h e a n n u l m e n t
of j u d g m e n t s of the Regional Trial Courts (Sec. 9). The
Regional Trial Courts shall have exclusive original
jurisdiction over actions for t h e a n n u l m e n t of judgments
of Metropolitan Trial Courts, Municipal Trial Courts and
Municipal Circuit Trial Courts (Sec. 19).
8. The rule of res judicata applies to final decisions
of quasi-judicial agencies (Amistoso vs. Ong, et al., G.R.
No. 60219, June 29, 1984). It also applies to j u d g m e n t s
rendered in probate proceedings (Sy Kao, et al. vs. CA, et
al., G.R. No. 61752, Sept. 28, 1984). In a land registration
p r o c e e d i n g , filed by t h e p l a i n t i f f a f t e r he h a d b e e n
declared t h e owner of t h e land involved in a civil case, the
opposition t h e r e t o , filed by t h e defendant who lost in said
civil case, is b a r r e d in said land registration proceeding
u n d e r t h e doctrine of res judicata. All t h e elements are
p r e s e n t and it is of no moment t h a t t h e court in the civil
case was in t h e exercise of general jurisdiction and in the
land registration case, in the exercise of special or limited
jurisdiction. The contrary ruling in Abellera vs. Farol
[74 Phil. 284] is abandoned (Valisno, et al. vs. Plan, et
al, G.R. No. 55152, Aug. 19, 1986).
S e c . 48. Effect of foreign judgments or final orders.

— T h e e f f e c t of a j u d g m e n t or f i n a l o r d e r of a
tribunal of a foreign country, h a v i n g jurisdiction
t o r e n d e r t h e j u d g m e n t o r final o r d e r i s a s f o l l o w s :
(a) In c a s e of a j u d g m e n t or final o r d e r u p o n a
specific thing, the j u d g m e n t or final order is
conclusive upon the title to the thing; and
(b) In c a s e of a j u d g m e n t or final o r d e r a g a i n s t
a p e r s o n , t h e j u d g m e n t or final o r d e r is p r e s u m p t i v e
evidence of a right as between the parties and their
s u c c e s s o r s in i n t e r e s t by a s u b s e q u e n t t i t l e .
I n e i t h e r c a s e , t h e j u d g m e n t o r final o r d e r m a y
be r e p e l l e d by e v i d e n c e of a w a n t of j u r i s d i c t i o n ,
534
w a n t o f n o t i c e t o t h e party, c o l l u s i o n , fraud, o r c l e a r
m i s t a k e of law or fact. (50a)
NOTES
1. Par. (a) is the rule on foreign judgments in actions

in rem, and par. (b), in actions in personam.
2. The j u d g m e n t of a foreign t r i b u n a l c a n n o t be
enforced by execution in the Philippines. Such j u d g m e n t
only creates a right of action and its non-satisfaction, a
cause of action, and it is necessary t h a t a suit be brought
upon said foreign judgment in our local courts (see Perkins
vs. Benguet Consolidated Mining Co., et al., 93 Phil. 1035).
3. In a suit upon a foreign judgment against a person

in our local c o u r t s , t h e d e f e n d a n t may i n t e r p o s e t h e
defenses in par. (b). If, however, the defendant had also
been a party to and actually participated in the proceedings
in the foreign court, he is bound by the judgment therein
and the doctrine of res judicata will apply to such foreign
j u d g m e n t (General Corporation of the Philippines vs.
Union Insurance Society of Canton, Ltd., et al., 37 Phil.
313).
4. Generally, the judgment of a foreign court is only

p r e s u m p t i v e e v i d e n c e of a r i g h t on t h e p a r t of t h e
prevailing p a r t y and if suit thereon is brought in the
Philippines, the same may be repelled by evidence of clear
mistake of law (Soorajmull Nagarmull vs. Binalbagan
Isabela Sugar Co., Inc., L-22470, May 28, 1970). See
the illustration and discussion of this section in Asiavest
Merchant Bankers (M) Berhad vs. CA, et al. (G.R.
No. 110263, July 20, 2001).
5. In Mijares, et al. vs. Ranada, etc., et al. (G.R. No.
139325, April 12, 2005), the Supreme Court reiterated and
amplified t h e procedural rules on the recognition and
enforcement of foreign judgments embodied in Sec. 48 of
535
this Rule. It observed t h a t while t h e foreign judgments

contemplated t h e r e i n may be conclusive, if in rem, or
presumptive, if in personam, it is necessary t h a t "in either
case" a civil action should be filed in our courts, primarily
to allow the losing p a r t y an opportunity to challenge the
j u d g m e n t on t h e g r o u n d s provided in said section and
defend itself against the enforcement of t h a t decision in
the local forum.
T h a t civil action, both for adjective and jurisdictional
p u r p o s e s , is considered as one incapable of p e c u n i a r y
estimation and such categorization is binding in assessing
t h e docket and o t h e r filing fees u n d e r t h e schematic table
in Rule 141. It is t r u e t h a t t h e foreign j u d g m e n t may
ultimately result in recovery by the plaintiffs of monetary
or p r o p r i e t a r y a w a r d s , b u t in an o r d i n a r y action for
monetary relief, t h e cause of action e m a n a t e s from the
violation of t h e r i g h t s of t h e plaintiff t h r o u g h an act or
omission of t h e defendant; while in t h e enforcement of a
foreign j u d g m e n t , t h e cause of action a n d subject-matter
are t h e foreign j u d g m e n t itself. In the former, t h e r e must
be proof of t h e wrongful act of the defendant, while in the
latter, t h e m a t t e r left for proof is t h e foreign j u d g m e n t
itself, not t h e facts from which it prescinds.
Sec. 48 restricts t h e actionable issues or grounds for
challenging t h e foreign j u d g m e n t . Such limitation on
t h e review of a foreign j u d g m e n t is adopted in all legal
systems to avoid repetitive litigation on claims and issues,
p r e v e n t h a r a s s m e n t o f t h e p a r t i e s a n d avoid u n d u e
imposition on t h e courts. This policy of preclusion rests
on principles of comity, utility and convenience of nations.
As a generally accepted principle of i n t e r n a t i o n a l law, it
is p a r t of t h e law of t h e P h i l i p p i n e s by v i r t u e of t h e
incorporation clause of the Constitution (Sec. 2, Art. II).
See also the discussion in Raytheon International, Inc.
vs. Rouzie, Jr. (G.R. No. 162894, Feb. 26, 2008).
536
RULE 40
APPEAL FROM MUNICIPAL TRIAL COURTS

TO THE REGIONAL TRIAL COURTS
S e c t i o n 1. Where to appeal. — An a p p e a l f r o m a
j u d g m e n t or final o r d e r of a M u n i c i p a l Trial Court
m a y b e t a k e n t o t h e R e g i o n a l Trial Court e x e r c i s i n g
jurisdiction over the area to which the former
pertains. The title of the case shall remain as it
w a s i n t h e c o u r t o f o r i g i n , but t h e party a p p e a l i n g
t h e c a s e s h a l l b e further referred t o a s t h e a p p e l l a n t
a n d t h e a d v e r s e p a r t y a s t h e a p p e l l e e , (n)
NOTE
1. The former Sec. 1 of Rule 40 provided t h a t an

appeal from an inferior court should be taken "to the Court
of First Instance of the province where the judgment was
rendered." However, Sec. 18 of B.P. Blg. 129 thereafter
provided t h a t the Supreme Court shall define the territory
over which a b r a n c h of t h e Regional Trial Court shall
exercise its authority. The territory t h u s defined shall,
inter alia, determine the lower courts over which the said
branch may exercise appellate jurisdiction. Sec. 21 of
the Interim Rules later implemented said provision on
appeals to the Regional Trial Court from cases decided
b y t h e lower c o u r t s , i n c l u d i n g t h e basic p r o c e d u r e
therefor. Starting with Administrative Order No. 3, dated
J a n u a r y 19, 1983, t h e S u p r e m e C o u r t defined t h e
territorial jurisdiction of the Regional Trial Courts and
specifically t h a t of the branches thereof.
Sec. 2. When to appeal. — An appeal may be t a k e n

w i t h i n fifteen (15) d a y s after notice to t h e a p p e l l a n t
of the j u d g m e n t or final order appealed from. Where
a record on a p p e a l is required, t h e a p p e l l a n t shall
537
file a n o t i c e of a p p e a l a n d a r e c o r d on a p p e a l w i t h i n
t h i r t y (30) d a y s a f t e r n o t i c e o f t h e j u d g m e n t o r final
order.
T h e p e r i o d of a p p e a l s h a l l be i n t e r r u p t e d by a
t i m e l y m o t i o n for n e w t r i a l o r r e c o n s i d e r a t i o n . N o
m o t i o n for e x t e n s i o n of t i m e to file a m o t i o n for n e w
t r i a l o r r e c o n s i d e r a t i o n s h a l l b e a l l o w e d , (n)
NOTE
1. P u r s u a n t to R.A. 7691, t h e municipal trial courts

now have probate jurisdiction w h e r e t h e gross value of
t h e e s t a t e , w h e t h e r t e s t a t e or i n t e s t a t e , does not exceed
FIOO.OOO or, if in Metro Manila, P200.000. As provided
in Sec. 3 of t h i s R u l e , an a p p e a l from s u c h special
p r o c e e d i n g s h a l l be by r e c o r d on a p p e a l . The regle-
m e n t a r y periods of a p p e a l s from t h e inferior court are
the same as those from t h e Regional Trial Courts.
The second p a r a g r a p h of t h i s section, regarding the
i n t e r r u p t i o n of t h e period of a p p e a l and the prohibition of
a motion for extension to file a motion for new trial or
reconsideration is likewise t h e s a m e as the rule thereon in
t h e Regional Trial C o u r t s (Sec. 3, Rule 41). This is in
consonance w i t h t h e policy on uniformity of procedure in
both courts.
S e c . 3. How to appeal. — T h e a p p e a l is t a k e n by
filing a n o t i c e o f a p p e a l w i t h t h e c o u r t t h a t r e n d e r e d
t h e j u d g m e n t o r f i n a l o r d e r a p p e a l e d from. The
notice of appeal shall indicate the parties to the
a p p e a l , t h e j u d g m e n t o r final o r d e r o r part t h e r e o f
a p p e a l e d from, a n d s t a t e t h e m a t e r i a l d a t e s s h o w i n g
the timeliness of the appeal.
A r e c o r d on a p p e a l s h a l l be r e q u i r e d o n l y in
special proceedings and in other cases of multiple
or separate appeals.
RULE 40 A P P E A L FROM T H E MUNICIPAL TRIAL COURTS SECS. 4, 5
TO T H E REGIONAL TRIAL COURTS
T h e form a n d c o n t e n t s o f t h e r e c o r d o n a p p e a l
s h a l l be as p r o v i d e d in s e c t i o n 6, R u l e 4 1 .
Copies of the notice of appeal, and the record
on appeal where required, shall be served on the
a d v e r s e party, (n)
NOTE
1. J u s t like Sec. 5, Rule 41 on notice of appeal from

the Regional Trial Court, it is required by this amended
section t h a t t h e notice of appeal shall indicate not only
the p a r t i e s but also the j u d g m e n t or final order or p a r t
thereof appealed from, together with t h e material d a t e s
showing the timeliness of the appeal. The last mentioned
requirement is the same as the "material data rule"
applicable to records on appeal with respect to the contents
thereof, a n d for t h e s a m e r e a s o n s which impelled t h e
adoption of t h a t rule.
S e c . 4. Perfection of appeal; effect thereof. — T h e

p e r f e c t i o n o f t h e a p p e a l a n d t h e effect t h e r e o f s h a l l
be governed by the provisions of section 9, Rule 41.
(n)
NOTE
1. Since appeals from the inferior courts may now

be either by notice of appeal or record on appeal, the rules
on the perfection and the effect thereof are the same. See
the discussion thereof in the notes under Sec. 9, Rule 41.
S e c . 5. Appellate court docket and other lawful fees.

— W i t h i n t h e p e r i o d for t a k i n g a n a p p e a l , t h e
a p p e l l a n t s h a l l p a y t o t h e clerk o f t h e c o u r t w h i c h
r e n d e r e d t h e j u d g m e n t or final order a p p e a l e d from
t h e full a m o u n t o f t h e a p p e l l a t e c o u r t d o c k e t a n d
o t h e r lawful fees. Proof o f p a y m e n t t h e r e o f s h a l l
be transmitted to the appellate court together with
539
the original record or the record on appeal, as the

c a s e m a y be. (n)
NOTES
1. Prior to B.P. Blg. 129, t h e r e were holdings t h a t

the failure to pay the docket fee within the reglementary
period was fatal to an appeal (Dacudao vs. Duenas, et al.,
108 Phil. 95; Lanting vs. Guevarra, et al., L-22799,
April 25, 1969). If t h e docket fee paid was insufficient
due to an e r r o r of t h e t r e a s u r e r , t h e a p p e a l should not be
dismissed (Barnido, et al. vs. Balana, et al., L-26275,
July 26, 1966). Thereafter, in NAWASA vs. Secretary of
Public Works and Communications (L-20928, M a r . 31,
1966) a n d Favis, et al. vs. Municipality of Sabangan
(L-26522, Feb. 27, 1969), it was held t h a t non-payment
of the docket fees does not automatically result in dismissal
of the a p p e a l or affect t h e appellate jurisdiction of the
Court of F i r s t Instance, t h e dismissal being discretionary
in the appellate court if t h e r e are justifications for its non-
p a y m e n t (see Fontanar, et al. vs. Bonsubre, et al., G.R.
No. 56315, Nov. 25, 1986).
2. It is t r u e t h a t this section requires the p a y m e n t of

t h e full a m o u n t of t h e appellate court docket and other
lawful fees within the period for t a k i n g an appeal. It is
suggested, however, t h a t t h e foregoing rulings t h a t non-
p a y m e n t or incomplete p a y m e n t of t h e fees required on
appeal do not automatically result in t h e dismissal of the
appeal should be m a i n t a i n e d .
The failure to pay t h e docket and o t h e r lawful fees is
also a ground for the dismissal of t h e appeal in t h e Court
of Appeals (Sec. l[c], Rule 50) and in t h e S u p r e m e Court
(Sec. 5[c], Rule 56). However, it has heretofore been held
t h a t even in said appellate courts, with the exception of
failure to file t h e notice of a p p e a l or record on appeal
within the reglementary period, it is not t h e ministerial
duty of t h e court to dismiss t h e appeal where one of the
540
RULE 40 APPEAL FROM T H E MUNICIPAL TRIAL COURTS SEC. 6
grounds therefor obtains (see notes u n d e r Sec. 1, Rule

50). More specifically, the non-payment of the appellate
court docket fee is not a mandatory ground for dismissal
of t h e a p p e a l (Panes vs. CA, et al., G.R. No. 58321,
Jan. 31, 1983). And although involving the m a t t e r of
non-payment or incomplete payment of docket fees in the
filing of original actions, the liberalized a t t i t u d e of the
Supreme Court in Sun Insurance Office Ltd., modifying
the doctrine in Manchester Development Corporation (see
notes u n d e r Sec. 5, Rule 1), would bolster this submission.
It has lately been held, however, t h a t a strict
application of t h e rule on the payment of docket fees in
the Court of Appeals should be adopted, on the theory
t h a t p a y m e n t i n full o f t h e d o c k e t fees w i t h i n t h e
prescribed period is mandatory (Pedrosa vs. Hill, et al.,
G.R. No. 120804, June 14, 1996). It will nonetheless be
observed t h a t in t h a t case, despite timely notice and
admonition from the appellate court, appellants paid the
docket fee 4 m o n t h s after t h e date of notice, and t h e
reasons given by t h e m for such default were considered
by the appellate court as reflective of their lack of interest
and inexcusable lethargy in pursuing their appeal.
Reliance for said ruling was placed on the holding in
Guevarra vs. Court of Appeals (L-43714, J a n . 15, 1988)
but, again, in said case the docket fees were paid 41 days
late and on the flimsy excuse t h a t the delay was due to
"inadvertence, oversight and pressure of work." It would
appear, therefore, t h a t while compliance with the
requirement for timely payment of docket fees on appeal
is mandatory, the appellate court is not without power to
make exceptions thereto on justifiable cause, instead of
dismissing the appeal on t h a t sole ground.
Sec. 6. Duty of the clerk of court. — Within fifteen

(16) d a y s from t h e perfection of t h e appeal, t h e clerk
of c o u r t or t h e b r a n c h clerk of c o u r t of t h e l o w e r
court shall transmit the original record or the
541
record on appeal, together with the transcripts

and exhibits, w h i c h he shall certify as complete, to
the proper Regional Trial Court. A copy of his
c e r t i f i c a t i o n s h a l l b e f u r n i s h e d t h e p a r t i e s , (n)
NOTE
1. This w a s t a k e n from t h e former Sec. 5, Rule 40

and P a r . 21(b) of t h e I n t e r i m Rules, with t h e modification
t h a t aside from the original record or t h e record on appeal,
the transcripts and exhibits taken or submitted in the lower
court shall be elevated to t h e Regional Trial Court. The
lower court, being a court of record, t r a n s c r i p t s of the
proceedings t h e r e i n a n d t h e documentary evidence of the
p a r t i e s may be involved in t h e appeal, hence t h e specific
mention thereof a n d t h e extension of t h e period from the
o r i g i n a l 5 d a y s to 15 d a y s w i t h i n w h i c h t h e clerk of
court should comply w i t h his duty u n d e r this section. A
certification of t h e completeness of the documents
t r a n s m i t t e d to t h e appellate court m u s t be furnished to
t h e p a r t i e s for t h e i r verification and a p p r o p r i a t e action.
S e c . 7. Procedure in the Regional Trial Court. —

(a) U p o n r e c e i p t o f t h e c o m p l e t e r e c o r d o r t h e
record on appeal, the clerk of court of the Regional
Trial C o u r t s h a l l n o t i f y t h e p a r t i e s o f s u c h fact.
(b) W i t h i n f i f t e e n (15) d a y s f r o m s u c h n o t i c e ,
it shall be the duty of the appellant to submit a
m e m o r a n d u m w h i c h shall briefly d i s c u s s the
errors imputed to the lower court, a copy of which
shall be furnished by h i m to the a d v e r s e party.
W i t h i n f i f t e e n (15) d a y s from r e c e i p t of the
a p p e l l a n t ' s m e m o r a n d u m , t h e a p p e l l e e m a y file his
m e m o r a n d u m . F a i l u r e o f t h e a p p e l l a n t t o file a
m e m o r a n d u m s h a l l be a g r o u n d for d i s m i s s a l of t h e
appeal.
542
RULE 40 A P P E A L FROM T H E M U N I C I P A L TRIAL COURTS SEC. 8
(c) U p o n t h e f i l i n g o f t h e m e m o r a n d u m o f t h e
appellee, or the expiration of the period to do so,
t h e c a s e s h a l l b e c o n s i d e r e d s u b m i t t e d for d e c i s i o n .
The R e g i o n a l Trial Court s h a l l d e c i d e t h e c a s e o n
the basis of the entire record of the proceedings had
in the court of origin and such memoranda as are
filed, (n)
NOTES
1. This w a s t a k e n from P a r . 21(c) a n d (d) of t h e

Interim Rules, with a clarification on the contents and
the sequence in the filing of the memoranda of the parties.
2. The requirement in Sec. 7(b) for the submission of
appellant's m e m o r a n d u m is a mandatory and compulsory
rule. Non-compliance therewith authorizes the dismissal
of the appeal (Enriquez vs. CA, et al., G.R. No. 140473,
Jan. 28, 2003).
3. Under the former procedure, and there appears to

be no reason for departing therefrom, where the p a r t y
had appeared by counsel in the inferior court, the notice
contemplated in this section should be sent to the attorney
(Elli, et al. vs. Ditan, et al., L-17444, June 30, 1962; see
also Sec. 21, Rule 138); but if the notice was sent to the
party himself and he actually received the same, such
notice is valid a n d b i n d i n g (Valenzuela vs. Balayo,
L-18738, Mar. 30, 1963; Cordoviz vs. De Obias, L-21184,
Sept. 5, 1967).
S e c . 8. Appeal from orders dismissing case without

trial; lack of jurisdiction. — If an a p p e a l is t a k e n
from a n o r d e r o f t h e l o w e r c o u r t d i s m i s s i n g t h e
c a s e w i t h o u t a trial on t h e m e r i t s , t h e Regional Trial
Court m a y affirm or r e v e r s e it, as t h e c a s e may be.
In c a s e of affirmance and t h e g r o u n d of d i s m i s s a l is
lack o f j u r i s d i c t i o n o v e r t h e s u b j e c t m a t t e r , t h e
Regional Trial Court, if it has jurisdiction
543
t h e r e o v e r , s h a l l t r y t h e c a s e o n t h e m e r i t s a s i f the
c a s e w a s o r i g i n a l l y filed w i t h it. I n c a s e o f reversal,
t h e c a s e s h a l l b e r e m a n d e d for f u r t h e r p r o c e e d i n g s .
If the case w a s tried on the merits by the lower
c o u r t w i t h o u t j u r i s d i c t i o n o v e r t h e s u b j e c t matter,
t h e R e g i o n a l Trial C o u r t o n a p p e a l s h a l l n o t d i s m i s s
t h e c a s e i f i t h a s o r i g i n a l j u r i s d i c t i o n thereof, but
shall d e c i d e the case in a c c o r d a n c e with the
p r e c e d i n g section, w i t h o u t prejudice to the
admission of amended pleadings and additional
e v i d e n c e i n t h e i n t e r e s t o f j u s t i c e , (n)
NOTE
1. The first p a r a g r a p h was t a k e n from the former

Sec. 10 of R u l e 40, a n d t h e s e c o n d p a r a g r a p h from
Sec. 11 thereof. However, a major change h a s been made
on t h e a s s u m p t i o n of original jurisdiction over the case by
t h e Regional Trial Court.
The first p a r a g r a p h contemplates the situation
w h e r e i n t h e case w a s not t r i e d on t h e m e r i t s but was
dismissed on a technical objection or question of law, as
w h e r e t h e case w a s d i s m i s s e d for i m p r o p e r v e n u e on
defendant's motion or for prescription. No trial having
been held, t h e Regional T r i a l C o u r t on a p p e a l merely
affirms or r e v e r s e s t h e order of dismissal and, in case of
reversal, r e m a n d s t h e case to t h e lower court for further
proceedings.
However, w h e r e t h e question of law involves lack of
jurisdiction over the subject-matter and the Regional Trial
Court h a s jurisdiction thereover, it shall try the case on
t h e m e r i t s as if t h e case was originally filed with it. The
c o n s e n t of t h e p a r t i e s to s u c h a s s u m p t i o n of original
jurisdiction over the case is not required and this abandons
previous rulings which made it optional on the p a r t of the
p a r t i e s on w h e t h e r or not to s u b m i t to such original
jurisdiction (see, for instance, Zulueta vs. Mariano, et al.,
544
RULE 40 A P P E A L FROM T H E MUNICIPAL TRIAL COURTS SEC. 9
L-29360, Jan. 30, 1982; Alvir vs. Vera, et al, L-39338,

July 16, 1984).
The s a m e p r o c e d u r e , w h e r e b y t h e Regional T r i a l
Court a s s u m e s original jurisdiction over the case without
the need for consent t h e r e t o by the parties, is followed
where t h e case was tried on t h e merits by the lower court
a l t h o u g h it did not have jurisdiction over t h e subject-
m a t t e r . However, since t h e r e was an actual trial of the
case on t h e merits, which normally entailed reception of
evidence on which t h e j u d g m e n t of the lower court was
based, in the interest of justice, the parties may be allowed
to file amended pleadings and adduce additional evidence
at the trial of t h e case in the Regional Trial Court.
S e c . 9. Applicability of Rule 41. — T h e o t h e r

p r o v i s i o n s o f R u l e 4 1 shall a p p l y t o a p p e a l s p r o v i d e d
for h e r e i n i n s o f a r a s t h e y are n o t i n c o n s i s t e n t w i t h
or may serve to supplement the provisions of this
Rule, (n)
NOTES
1. For b a c k g r o u n d m a t e r i a l s or referential bases

regarding appeals from the decisions of the inferior courts,
see Secs. 22, 38 and 39, B.P. Blg. 129 and P a r s . 20, 21
a n d 22(b) of t h e I n t e r i m or T r a n s i t i o n a l R u l e s a n d
Guidelines, t h e a p p e l l a t e procedure in t h e e v e n t of a
further appeal to the Intermediate Appellate Court being
as follows:
"22. Appellate procedure in the Intermediate
Appellate Court. —
X X X
(b) Review of appealed cases from Regional Trial

Courts. — In actions or proceedings originally filed
in t h e Metropolitan Trial Courts, Municipal Trial
Courts and Municipal Circuit Trial Courts appealed
545
to t h e Regional Trial Courts, t h e final j u d g m e n t s or

orders of t h e l a t t e r may be appealed by petition for
review to the Intermediate Appellate Court which may
give due course only when t h e petition shows prima
facie t h a t t h e lower court has committed an error of
fact or law t h a t will w a r r a n t a reversal or modification
of t h e decision or final order sought to be reviewed.
The petition for review shall be governed by the
Resolution of t h e Court of Appeals dated August 12,
1971, as modified in t h e m a n n e r indicated in t h e
preceding p a r a g r a p h hereof."
2. In Lacsamana, et al. vs. The Hon. Second Special

Cases Division of the IAC, et al. (G.R. Nos. 73146-53,
Aug. 26, 1986), t h e S u p r e m e Court r e s t a t e d and clarified
t h e modes a n d periods of appeal, as follows:
" 1) ORDINARY APPEALS BY MERE NOTICE OF
APPEAL.
I n a n o r d i n a r y a p p e a l from t h e f i n a l
j u d g m e n t or order of a metropolitan or municipal
t r i a l court to t h e regional t r i a l court, and from the
r e g i o n a l t r i a l court to t h e C o u r t of Appeals in
a c t i o n s or p r o c e e d i n g s o r i g i n a l l y filed in t h e
r e g i o n a l t r i a l court, t h e fifteen-day period for
appeal provided by Section 39 of BP No. 129 and
Section 19(a) of t h e I n t e r i m Rules is i n t e r r u p t e d
o r s u s p e n d e d b y a m o t i o n for n e w t r i a l o r
reconsideration, unless such motion fails to satisfy
t h e r e q u i r e m e n t s of Rule 37 (Section 3 of Rule
41). If t h e motion for new t r i a l or reconsideration
is denied, t h e moving p a r t y h a s only the
r e m a i n i n g period from notice of d e n i a l w i t h i n
which to file a notice of appeal, which is t h e only
r e q u i r e m e n t for t a k i n g a n a p p e a l u n d e r t h e
p r e s e n t rules. Obviously, no extension of time to
file such a notice of appeal is needed, much less
allowed.
546
RULE 40 APPEAL FROM THE MUNICIPAL TRIAL COURTS SEC. 9
2) APPEALS IN SPECIAL PROCEEDINGS AND

O T H E R CASES W H E R E I N M U L T I P L E
APPEALS ARE ALLOWED.
In an a p p e a l in a s p e c i a l p r o c e e d i n g u n d e r
Rule 109 of t h e Rules of Court and in o t h e r cases
wherein multiple appeals are allowed, the period of
appeal is thirty days, a record on appeal being
required (Section 19[b] of the Interim Rules). If a
motion for new trial or reconsideration is filed and
denied, the remaining period within which to file a
record on appeal may be too short and, hence a motion
for extension of time to file the record on appeal may
be granted, subject to the requirements summarized
in the Resolution of May 30, 1986. As the court stated
in the case of Roque vs. Gunigundo, 'the thirty-day
period may be extended because, where the record is
voluminous or the appellant has other pressing
m a t t e r s to a t t e n d to, it may not be practicable to
submit t h e record on appeal within the reglementary
period' (89 SCRA 178, 183).
3) APPEALS BY PETITION FOR REVIEW TO
THE COURT OF APPEALS.
The final judgment or order of a regional trial
court in an appeal from the final judgment or order
of a metropolitan trial court, municipal trial court and
municipal circuit trial court, may be appealed to the
C o u r t of A p p e a l s t h r o u g h a p e t i t i o n for r e v i e w
in accordance with Section 22 of BP No. 129 and
Section 22(b) of the Interim Rules, or to this Court
t h r o u g h a p e t i t i o n for r e v i e w on c e r t i o r a r i in
accordance with Rule 45 of the Rules of Court and
Section 25 of t h e I n t e r i m Rules. The r e a s o n for
extending the period for the filing of a record on appeal
is also applicable to the filing of a petition for review
with the Court of Appeals. The period for filing a
petition for review is fifteen days. If a motion for
547
reconsideration is filed with and denied by a regional

trial court, t h e movant h a s only t h e remaining period
within which to file a petition for review. Hence, it
may be necessary to file a motion with the Court of
Appeals for extension of time to file such petition for
review.
4) APPEALS FROM QUASI-JUDICIAL BODIES
TO THE COURT OF APPEALS.
In an a p p e a l from quasi-judicial bodies to the
Court of Appeals u n d e r Republic Act No. 5434 and
Section 22(c) of t h e I n t e r i m Rules, the appeal shall
be t a k e n by filing a notice of appeal with the Court of
A p p e a l s a n d w i t h t h e q u a s i - j u d i c i a l body within
fifteen days from notice of the ruling, award, decision
or j u d g m e n t ; or in case a motion for reconsideration
is filed w i t h i n said period, t h e n within ten days from
notice of the resolution denying the motion for
reconsideration (Sections 2 and 3 of R.A. No. 5434).
No extension of time to file such a notice of appeal is
needed, much less allowed.
5) A P P E A L S BY C E R T I O R A R I TO THE
SUPREME COURT.
In an a p p e a l by certiorari to this Court under
Rule 45 of t h e Rules of Court, Section 25 of the Interim
Rules a n d Section 7 of PD No. 1606, a p a r t y may file
a petition for review on certiorari of the j u d g m e n t of
a r e g i o n a l t r i a l court, t h e I n t e r m e d i a t e Appellate
Court, or t h e S a n d i g a n b a y a n within fifteen days from
notice of j u d g m e n t or of the denial of his motion for
reconsideration filed in due time, and paying at the
same time t h e corresponding docket fee (Section 1 of
Rule 45). In other words, in the event a motion for
reconsideration is filed and denied, the period of
fifteen days begins to run again from notice of denial.
(See Codilla vs. Estenzo, 97 SCRA 351; Turingan vs.
Cacdac, 112 SCRA 634).
548
RULE 40 APPEAL FROM T H E MUNICIPAL TRIAL COURTS SEC. 9
A motion for extension of time to file a petition

for review on certiorari may be filed with the Supreme
Court within the reglementary period, paying at the
same time the corresponding docket fee.
Copies of the motion for extension of time and of
the subsequent petition for review on certiorari m u s t
be served on the lower court and on the adverse party.
6) PERIOD OF EXTENSION OF TIME TO FILE
PETITION FOR REVIEW.
Beginning one month after the promulgation of
this Decision, an extension of only fifteen days for
filing a petition for review may be g r a n t e d by the
Court of Appeals, save in exceptionally meritorious
cases.
The motion for extension of time must be filed
and t h e corresponding docket fee paid within t h e
reglementary period of appeal.
Copies of the motion for extension of time and of
the subsequent petition for review must be served on
the regional trial court and on the adverse party."
3. However, t h e r e have been subsequent changes
in the Rules which affected the procedure outlined in some
p a r a g r a p h s of this resume. Thus, for a petition for review
of a j u d g m e n t or final order of the Regional Trial Court to
t h e Court of Appeals subject of P a r s . (3) a n d (5), see
Rule 42 and the notes therein. With respect to Par. (4)
on a p p e a l s from quasi-judicial bodies to t h e Court of
Appeals, see Rule 43.
549
RULE 41
A P P E A L FROM THE
R E G I O N A L TRIAL C O U R T S
S e c t i o n 1. Subject of appeal. — An a p p e a l m a y be
t a k e n from a j u d g m e n t or final order that
completely d i s p o s e s of the case, or of a particular
matter therein w h e n declared by these Rules to be
appealable.
N o a p p e a l m a y b e t a k e n from:
(a) An o r d e r d e n y i n g a p e t i t i o n for r e l i e f or
a n y s i m i l a r m o t i o n s e e k i n g r e l i e f from
judgment;
(b) An i n t e r l o c u t o r y o r d e r ;
(c) A n o r d e r d i s w a l l o w i n g o r d i s m i s s i n g a n
appeal;
(d) An o r d e r d e n y i n g a m o t i o n to s e t a s i d e a
judgment by consent, confession or compromise
on t h e g r o u n d of fraud, mistake or duress,
or any other ground vitiating consent;
(e) A n o r d e r o f e x e c u t i o n ;
(f) A j u d g m e n t or f i n a l o r d e r for or a g a i n s t
one or more of several parties or in separate
claims, c o u n t e r c l a i m s , cross-claims and
third-party complaints, while the main case
is pending unless the court allows an
appeal therefrom; and
(g) A n o r d e r d i s m i s s i n g a n a c t i o n w i t h o u t
prejudice.
In any of the foregoing circumstances, the
a g g r i e v e d p a r t y m a y file a n a p p r o p r i a t e s p e c i a l civil
a c t i o n as p r o v i d e d in R u l e 66. (As amended in A.M.
No. 07-7-12-SC, effective Dec. 27, 2007)
550
RULE 41 APPEAL FROM THE SEC. 1
REGIONAL TRIAL COURTS
NOTES
1. This new provision in t h e Rules clarifies a n d

reiterates the judgment or final order t h a t may be appealed
from, and specifies t h e interlocutory or other orders from
which no appeal can be t a k e n . In the l a t t e r instance, the
aggrieved p a r t y may resort to a special civil action u n d e r
Rule 65, t h a t is, a petition for certiorari or prohibition and,
in the case of an order disallowing or dismissing an appeal,
a petition for m a n d a m u s .
Par. (g) refers to t h e several or s e p a r a t e j u d g m e n t s
provided for in Rule 36, and appeals therefrom a r e not
absolutely prohibited but depend upon the circumstances
of the case and t h e sound discretion of the court.
2. An order is considered interlocutory if it does not
dispose of t h e case but leaves something else to be done
by the trial court on the merits of the case. An order is
final, for purposes of appeal, if it disposes of the entire
case (see Note 1 u n d e r Sec. 1, Rule 39; Investments, Inc.
3. Where t h e order is interlocutory, the movant has
t o w a i t for t h e j u d g m e n t a n d t h e a p p e a l from t h e
judgment, in the course of which appeal he can assign as
error the said interlocutory order. The interlocutory order
cannot be appealed from separately from the j u d g m e n t
(Mapua vs. Suburban Theaters, Inc., 81 Phil. 311). The
general rule is t h a t where the interlocutory order was
rendered without or in excess of jurisdiction or with grave
abuse of discretion, the remedy is certiorari, prohibition
or m a n d a m u s depending on the facts of the case.
4. Where the order appealed from is interlocutory,
t h e appellate court can dismiss t h e appeal even if no
objection thereto was filed by the appellee in either the
trial or appellate court (Sec. l[ij, Rule 50; Abesames vs.
Garcia, 98 Phil. 769).
551
5. Where the defendant has been improperly declared

in default and has perfected his appeal from the judgment
by default, he can still avail of certiorari to prevent the
carrying out of t h e writ of execution improperly issued by
t h e t r i a l court (Omico Mining & Industrial Corp. vs.
Vallejos, etc., et al., L-38974, Mar. 25, 1975).
6. A major change has been introduced in Par. (b) of

this section which declares as non-appealable an order
denying a petition for relief from j u d g m e n t . This changes
the rule in Sec. 2 of the former Rule 41 providing t h a t a
" j u d g m e n t d e n y i n g relief u n d e r Rule 38 is subject to
appeal, and in the course thereof, a p a r t y may also assail
the j u d g m e n t on t h e merits."
I n t e r p r e t i n g t h a t provision, the Supreme Court
explained t h a t it does not m e a n t h a t in such appeal the
appellate court may reverse or modify said j u d g m e n t on
the merits since t h e j u d g m e n t involved is already final
and executory. It pointed out t h a t t h e purpose of t h e Rule
is to enable t h e appellate court to d e t e r m i n e not only the
existence of any of t h e four grounds relied upon, b u t also
and primarily t h e merit of t h e petitioner's cause of action
or defense, as t h e case may be. If t h e a p p e l l a t e court
finds t h a t one of the grounds exists and, w h a t is of decisive
importance, t h a t t h e petitioner has e i t h e r a good cause of
action or defense, it will reverse the denial or dismissal,
set aside t h e j u d g m e n t in t h e main case and r e m a n d the
case to t h e lower court for a new t r i a l in accordance with
the t h e n Sec. 7 of Rule 38.
On t h e other h a n d , if t h e petition for relief is against
an order disallowing an a p p e a l for having been filed out
of time and t h e petition is denied, in t h e appeal from such
d e n i a l o r d i s m i s s a l , t h e a p p e l l a t e c o u r t m u s t also b e
apprised of t h e m e r i t of t h e case of t h e p a r t y who assails
such denial or dismissal. If the appellate court finds a
justifiable ground and a meritorious case, it will reverse
t h e denial or d i s m i s s a l and allow t h e a p p e a l from the
552
RULE 41 A P P E A L FROM T H E SEC. 2
decision in the main case (Servicewide Specialists, Inc.

vs. Sheriff of Manila, et al., G.R. No. 74586, Oct. 17, 1986).
A l t h o u g h t h e p r o c e d u r e h a s now b e e n c h a n g e d
because the aforestated putative errors of the lower court
can no longer be the subject of appeal but may be raised
for review by t h e h i g h e r court u n d e r t h e a p p r o p r i a t e
extraordinary writ under Rule 65, virtually the same reliefs
suggested in the aforesaid case are substantially available.
In the first instance, the final or executory j u d g m e n t of
the lower court shall not, of course, be reversed or modified
but if the r e q u i r e m e n t s for relief therefrom are present,
such j u d g m e n t s h a l l be set aside by t h e h i g h e r court
handling t h e certiorari case, which shall t h e n h e a r and
decide the same (instead of remanding it to the lower court)
as if a timely motion for new trial or reconsideration had
been granted (Sec. 6, Rule 38).
In t h e second instance, if the petition for relief which
was denied is against an order disallowing an appeal, while
the review thereof shall now be through a petition for
m a n d a m u s , i n t h a t s p e c i a l civil a c t i o n t h e o r d e r
disallowing the appeal can be reversed and the lower court
shall be required to give due course to the appeal (Sec. 7,
Rule 38).
Sec. 2. Modes of appeal. —

(a) Ordinary appeal. — The a p p e a l to t h e Court
of A p p e a l s in c a s e s d e c i d e d by t h e R e g i o n a l Trial
C o u r t i n t h e e x e r c i s e o f its o r i g i n a l j u r i s d i c t i o n
shall be t a k e n by filing a n o t i c e of a p p e a l w i t h t h e
c o u r t w h i c h r e n d e r e d t h e j u d g m e n t o r final o r d e r
a p p e a l e d from a n d s e r v i n g a c o p y t h e r e o f u p o n t h e
adverse party. No record on appeal shall be required
except in special proceedings and other cases of
m u l t i p l e or s e p a r a t e a p p e a l s w h e r e t h e law or t h e s e
Rules so require. In such cases, the record on
a p p e a l shall be filed and s e r v e d in like m a n n e r .
553
(b) Petition for review. — T h e a p p e a l to t h e Court

o f A p p e a l s i n c a s e s d e c i d e d b y t h e R e g i o n a l Trial
Court in the exercise of its appellate jurisdiction
s h a l l b e b y p e t i t i o n for r e v i e w i n a c c o r d a n c e w i t h
R u l e 42.
(c) Appeal by certiorari. — In all c a s e s w h e r e only
q u e s t i o n s of law are raised or involved, the appeal
s h a l l b e t o t h e S u p r e m e C o u r t b y p e t i t i o n for r e v i e w
o n c e r t i o r a r i i n a c c o r d a n c e w i t h R u l e 45. (n)
NOTES
1. This new section provides for t h e different modes

of a p p e a l from j u d g m e n t s or final orders of the Regional
Trial Court to t h e Court of Appeals or t h e S u p r e m e Court.
The first mode is t h e o r d i n a r y a p p e a l , sometimes
referred to as an appeal by writ of error due to the
r e q u i r e m e n t t h a t t h e brief filed for t h a t purpose must
contain an a s s i g n m e n t of e r r o r s . This presupposes t h a t
t h e Regional Trial Court r e n d e r e d t h e j u d g m e n t or final
order in t h e civil action or special proceeding in the exercise
of its original jurisdiction a n d t h e a p p e a l is t a k e n to the
Court of Appeals on questions of fact or mixed questions
of fact a n d law. The a p p e a l is t a k e n by notice of appeal
or by r e c o r d on a p p e a l . T h i s is t h e mode of a p p e a l
governed by Rule 4 1 .
The second mode of a p p e a l h a s to be observed where
t h e questioned j u d g m e n t or final order was r e n d e r e d by
t h e Regional Trial Court in t h e exercise of its appellate
jurisdiction over a j u d g m e n t or final order in a civil action
or special proceeding originally commenced in and decided
by a lower court. The a p p e a l is t a k e n by a petition for
review filed with t h e Court of Appeals on questions of fact,
of law, or on mixed q u e s t i o n s of fact a n d law, a n d is
governed by Rule 42.
554
The t h i r d mode is appeal by certiorari t a k e n to t h e

Supreme Court only on questions of law from a j u d g m e n t
or final order rendered in a civil action or special proceeding
by t h e Regional Trial Court in the exercise of its original
jurisdiction. The appeal is t a k e n by filing a petition for
review on certiorari with t h e Supreme Court subject to
the provisions of Rule 45.
2. Although t h e t e r m used in t h e second mode is
"petition for review" j u s t like t h a t in appeals from t h e
quasi-judicial agencies u n d e r Rule 43, it should not be
confused with t h e "petition for review on certiorari" u n d e r
the third mode which is a distinct procedure u n d e r Rule
45. Nor should the use of the word "certiorari" in the latter
be m i s t a k e n for t h e special civil action for certiorari in
Rule 65 which is not a mode of appeal but an original
action.
3. It bears reiterating t h a t what are provided for in
Sec. 2 are modes of appeal, and although the word "review"
is used in the second and third modes, they are strictly in
the n a t u r e of appellate proceedings regulated by t h e i r
respective Rules.
This caveat is worth stressing since in American law,
there is a fundamental difference between an "appeal" and
an action to "review." It is held there t h a t in the case of
appeal, the t r i b u n a l by which the first determination was
made is not a party to the proceeding for review, while in
an action to review, the t r i b u n a l which made the
d e t e r m i n a t i o n is a p a r t y to the proceeding for review
(Milwaukee County vs. Industrial Commission, 238 Wis.
94, 279 N. W. 655). On t h a t aspect regarding the position
of the lower tribunal, and with the amendment of Rule
45, the aforesaid distinction regarding an appeal and a
review would now apply to the rules on appeal in these
revised Rules, with the m a t t e r of an action for review
being consonant with the provisions of and the practice
involving Rules 64 and 65.
556
S e c . 3. Period of ordinary appeal; appeal in habeas

corpus cases. — T h e a p p e a l s h a l l be t a k e n w i t h i n
(15) d a y s f r o m n o t i c e o f t h e j u d g m e n t o r f i n a l
o r d e r a p p e a l e d from. W h e r e a r e c o r d on a p p e a l is
r e q u i r e d , t h e a p p e l l a n t s h a l l file a n o t i c e of a p p e a l
a n d a r e c o r d on a p p e a l w i t h i n t h i r t y (30) d a y s from
n o t i c e o f t h e j u d g m e n t o r final o r d e r . H o w e v e r , a n
a p p e a l in habeas corpus c a s e s s h a l l be t a k e n w i t h i n
f o r t y - e i g h t (48) h o u r s f r o m n o t i c e o f j u d g m e n t o r
final o r d e r a p p e a l e d from.
The period of appeal shall be interrupted by
a t i m e l y m o t i o n for n e w t r i a l o r r e c o n s i d e r a t i o n .
No m o t i o n for e x t e n s i o n of t i m e to file a m o t i o n for
new trial or reconsideration shall be allowed.
(n) (As amended in A.M. No. 01-103-SC, effective
July 15, 2001)
NOTES
1. The prohibition in t h e second p a r a g r a p h of this

section a g a i n s t t h e filing of a motion for extension of time
to file a motion for new t r i a l or reconsideration is taken
from t h e rules first laid down in Habaluyas Enterprises,
et al. vs. IAC, et al. (G.R. No. 70895, May 30, 1986) and
l a t e r r e i t e r a t e d by t h e S u p r e m e Court in its resolution of
April 7, 1988. See Note 5 u n d e r Sec. 8, Rule 37.
2. The r e g l e m e n t a r y period for a p p e a l is reckoned

from notice of t h e j u d g m e n t or order, or any subsequent
a m e n d m e n t thereof (Capistrano vs. Corina, et al., 93 Phil.
710). The period to appeal may be extended (Bueva vs.
Surtida, et al., L-23617, Aug. 26, 1967), but such extension
is addressed to t h e sound discretion of t h e court (Socco vs.
Garcia, L-18321, Oct. 31, 1962) and t h e mere filing and
pendency of t h e motion for extension of time to perfect
the appeal does not suspend the r u n n i n g of the
reglementary period (Bello, et al. vs. Fernandez,
L-16970, Jan. 30, 1962).
556
3. A motion to extend the period for filing t h e record

on appeal must be filed within the 30-day reglementary
period for perfecting the appeal. It should be h e a r d and
resolved promptly, or before the lapse of said period, so as
to apprise the appellant w h e t h e r or not his obligation to
file the record on appeal within the said period is dispensed
with (Semira us. Enriquez, 88 Phil. 288). The p a r t i e s or
their attorneys should be immediately notified of the order
issued on the m a t t e r so t h a t they may avail themselves of
the proper remedy if it is denied. In case it is g r a n t e d
and the court fails to s t a t e when the extension should
commence to run, it should be joined to the original period
or t h a t fixed by law and must be computed from t h e date
following the expiration thereof. If the order g r a n t i n g
the extension is issued and notice thereof served after the
expiration of the period fixed by law, the extension must
be computed from the date of notice of the order granting
it (Alejandro us. Endencia, 64 Phil. 321).
The filing of such motion, however, does not suspend
the running of the period for perfecting the appeal (Escolin
us. Garduho, 57 Phil. 294; Garcia us. Buenauentura,
74 Phil. 611; King us. Joe, et al., L-23617, Aug. 26, 1967),
and the appellant has the duty to ascertain the s t a t u s of
his motion, for if no action is t a k e n thereon or it is denied
after the lapse of the period, the right to appeal is lost
(Cumplido us. Mendoza, et al, L-20265, June 30, 1964).
When an appellant asks the court to extend the period for
perfecting his appeal and he himself fixes the extension
period in his motion, the motion is deemed denied if no
action is taken thereon and the period thereafter lapses
(Reyes, et al. vs. Sta. Maria, et al, L-29554, Nou. 20, 1972;
cf. Berkenkotter us. CA, et al, L-36629, Sept. 28, 1973).
4. Even if the appeal was filed out of time, the court

still has jurisdiction to admit and give due course to it,
provided there are justifiable reasons therefor (Reyes us.
CA, et al, 74 Phil. 235). The trend of the rulings of the
Supreme Court in matters pertaining to the timeliness of
567
the perfection of an appeal is to afford t h e litigant the

amplest opportunity to p r e s e n t his case freed from the
c o n s t r a i n t s of technicalities (Rodriguez, et al. vs. CA, et
al., L-37522, Nov. 28, 1975). Thus, t h e filing of an appeal
beyond t h e r e g l e m e n t a r y period has been allowed in some
cases, in the exercise of the equity jurisdiction of the courts,
w h e r e a s t r i n g e n t application of t h e rule would not serve
the d e m a n d s of s u b s t a n t i a l justice. The rules of procedure
a r e not to be applied in a very rigid or technical sense
since t h e y a r e d e s i g n e d to help s e c u r e j u s t i c e , not to
override t h e s a m e (Velasco, et al. vs. Gayapa, et al., G.R.
No. 58651, July 30, 1987).
5. In Neypes, et al. vs. CA, et al. (G.R. 141524,

Sept. 14, 2005), t h e Supreme Court announced its adoption
of t h e so-called "fresh period rule" with t h e avowed intent
to s t a n d a r d i z e t h e a p p e a l periods provided in the Rules
and to afford litigants fair opportunity to appeal their cases
t h r o u g h t h i s extension of time, g r a n t e d on justifiable and
compelling r e a s o n s .
The essence of t h i s new rule is t h e liberal g r a n t of a

fresh period of 15 days w i t h i n which t h e aggrieved party
in t h e case m a y file a notice of a p p e a l in t h e Regional
Trial Court, counted from receipt of t h e order dismissing a
motion for new t r i a l or reconsideration. While seemingly
involving a slight d e p a r t u r e from t h e provisions of the
p r e s e n t Sec. 3 of Rule 4 1 , t h e effect thereof is in fact
complementary to t h e s a m e but may justifiably be invoked
only in t h e i n t e r e s t of s u b s t a n t i a l justice.
To s t a n d a r d i z e t h e different a p p e a l periods in the

Rules, this "fresh period rule: was made applicable to Rule
40 governing appeals from t h e Municipal Trial Courts to
t h e Regional Trial Court; Rule 42 on petitions for review
from t h e Regional Trial Courts to t h e Court of Appeals;
Rule 43 on a p p e a l s from quasi-judicial agencies (now,
except t h e Court of Tax Appeals) to t h e Court of Appeals;
and Rule 45 governing appeals by certiorari to the Supreme
558
Court. This new rule thereby makes the appeal period

uniform by being invariably counted from receipt in the
case therein of t h e order denying the motion for new trial,
motion for reconsideration or any final order or resolution.
The Court t h u s recapitulated that, in the foregoing
situations, a p a r t y litigant may either file his notice of
appeal within 15 days from receipt of the Regional Trial
Court's decision, or within 15 days from receipt of the order
d e n y i n g h i s m o t i o n for n e w t r i a l o r m o t i o n for
reconsideration which thereby assumes the role of t h e
"final order." Having filed their appeal 5 days from receipt
of said order, t h e appeal of petitioners in said case was
within the "fresh" appeal period.
The same rule was followed in Spouses De los Santos

vs. Vda de Mangubat (G.R. No. 149508, Oct. 19, 2007)
where the Court reiterated the foregoing rationale and
procedure to give due course to the notice of appeal filed
by t h e p e t i t i o n e r s w i t h i n t h e fresh period of 15 days
granted therein. Although admittedly there were existing
procedural rules which could have barred the outright
application of the Neypes case, the Court explained t h a t
such procedural objections may be suspended or
disregarded to promote the ends of justice; and t h a t said
adjective provisions were not insuperable but admitted of
exceptions to give way to the new rule in Neypes.
It accordingly opted to set aside what it considered
undue technicalities which would frustrate r a t h e r t h a n
promote the ends of justice. Parenthetically, while the
Court stated in this later case t h a t it had "amended the
Rules of Court on the appeal period in Neypes," it could
not have been referring to an unpublished amendment of
t h e w o r d i n g s of t h e Rules of Court itself, b u t to an
amendment of the doctrinal precept thereof, t h a t is, not
the codal text but the j u r i s p r u d e n t i a l precedent, (cf.
Makati Irs. Co Inc. vs. Reyes etc. et al., G.R. No. 167903,
Aug. 6, 2008).
559
6. Where t h e t r i a l court dismissed t h e complaint,

t h e n s e t aside such dismissal order, b u t on motion for
r e c o n s i d e r a t i o n by t h e d e f e n d a n t it again ordered the
dismissal of t h e complaint, the period to appeal is reckoned
from receipt of t h e second order of dismissal (Lucas, et al.
vs. Mariano, et al., L-29157, April 27, 1972).
7. Where the trial court set aside an order dismissing

t h e c o m p l a i n t a n d g r a n t e d a new t r i a l b u t t h e r e a f t e r
e n t e r e d a n o t h e r o r d e r o f d i s m i s s a l , t h e p e r i o d for
perfecting an appeal r u n s from the date of the second order
of dismissal (Vda. de Haberer vs. Martinez, et al., L-39386,
Jan. 29, 1975).
8. The approval by t h e t r i a l court of the record on

appeal even if t h e period for t h e a p p e a l h a s expired, is
t a n t a m o u n t to a valid order g r a n t i n g t h e extension prayed
for b y a p p e l l a n t i f a n y s u c h m o t i o n h a s b e e n filed
(Berkenkotter vs. CA, et al., supra). C o n v e r s e l y , the
dismissal of t h e a p p e a l by t h e t r i a l court constitutes a
denial of t h e extension p r a y e d for, in which case the only
question t h a t can arise is w h e t h e r or not t h e t r i a l court
had gravely a b u s e d its discretion in denying such
extension (PVTA vs. De los Angeles, et al., L-29736,
Oct. 31, 1974).
9. Where t h e motion to set aside t h e j u d g m e n t is filed

on t h e last day of t h e period to appeal, t h a t day should be
excluded. Hence, w h e n t h e order denying t h e motion is
received, a p p e l l a n t still h a s one day to perfect his appeal.
This one-day period should be computed in accordance
with Rule 28 by excluding t h e day of receipt and including
t h e next day (Mara, Inc. vs. CA, et al, L-26584, July 31,
1969).
10. As a rule, it is t h e a p p e l l a t e court which will

d e t e r m i n e w h e t h e r t h e a p p e a l is pro forma, frivolous or
dilatory and thereafter dismiss the appeal, as the trial court
has the ministerial duty to elevate the records if the appeal
560
RULE 41 APPEAL FROM THE S E C S . 4-5
is duly perfected. However, if the trial court dismissed

t h e a p p e a l because it was clearly d e m o n s t r a t e d to be
dilatory and frivolous, such order will not be disturbed by
the appellate court (De la Cruz, et al. vs. Blanco, et al.,
73 Phil. 596). M a n d a m u s will not lie to compel t h e Court
of First Instance to give due course to the appeal u n d e r
said circumstances (Manila Railroad Co. vs. Ballesteros,
L-19161, April 29, 1966).
11. For appeals from decisions of the Regional Trial

Courts u n d e r B.P. Blg. 129, see Secs. 9, 22 and 39 thereof.
Sec. 4. Appellate court docket and other lawful fees.

— W i t h i n t h e p e r i o d for t a k i n g a n a p p e a l , t h e
appellant shall pay to the clerk of the court which
r e n d e r e d t h e j u d g m e n t or final order a p p e a l e d from,
t h e full a m o u n t o f t h e a p p e l l a t e c o u r t d o c k e t a n d
other lawful fees. Proof of payment of said fees
shall be transmitted to the appellate court together
with the original record or the record on appeal,
(n)
Sec. 5. Notice of appeal. — The n o t i c e of a p p e a l

shall i n d i c a t e t h e p a r t i e s t o t h e a p p e a l , specify t h e
j u d g m e n t o r final o r d e r o r part t h e r e o f a p p e a l e d
from, specify t h e c o u r t t o w h i c h t h e a p p e a l i s b e i n g
taken, and state the material dates showing the
t i m e l i n e s s of t h e appeal. (4a)
NOTES
1. Even if no notice of appeal was filed, such defect

may be disregarded if there was a record on appeal duly
filed, as the same is equivalent to a notice of appeal (Calo,
et al. vs. CFI of Agusan, 98 Phil. 420; see Phil. Resources
Dev. Corp. vs. NAW ASA, L-12803, Feb. 27, 1962). Hence,
the failure to serve a copy of the notice of appeal to the
adverse party who was, however, served with a copy of
561
t h e record on a p p e a l w h e r e i n such notice of appeal is

embodied, does not impair t h e right of appeal (Director of
Lands, et al. vs. Reyes, et al., L-27594, Nov. 28, 1975).
2. U n d e r t h e I n t e r i m Rules, as hereinbefore stated,

appeal bonds a r e no longer required (Par. 18) and records
on a p p e a l a r e required only in certain cases hereinafter
discussed (Par. 19fbJ; Sec. 39, B.P. Blg. 129), the general
rule now being t h a t only a notice of appeal is required to
perfect an appeal.
S e c . 6. Record on appeal; form and contents thereof.

— The full n a m e s of all the parties to the
proceedings shall be stated in the caption of the
record on appeal and it shall include the judgment
o r final o r d e r f r o m w h i c h t h e a p p e a l i s t a k e n a n d ,
in chronological order, copies of only such
p l e a d i n g s , p e t i t i o n s , m o t i o n s a n d all i n t e r l o c u t o r y
orders as are related to the appealed judgment or
final o r d e r for t h e p r o p e r u n d e r s t a n d i n g o f t h e i s s u e
involved, together with such data as will show that
the appeal w a s perfected on time. If an issue of
fact i s t o b e r a i s e d o n a p p e a l , t h e r e c o r d o n a p p e a l
shall i n c l u d e by reference all the evidence,
testimonial and documentary, taken upon the issue
involved. The reference shall specify the
documentary evidence by the exhibit numbers or
letters by which it was identified w h e n admitted or
offered at the hearing, and the testimonial evidence
by the names of the corresponding witnesses. If
the whole testimonial and documentary evidence
in the case is to be included, a statement to that
effect will be sufficient without mentioning the
names of the witnesses or the numbers or letters of
exhibits. Every record on appeal exceeding twenty
(20) p a g e s m u s t c o n t a i n a s u b j e c t i n d e x . (6a)
562
NOTES
1. The requirement t h a t the record on appeal m u s t

show on its face t h a t the appeal was perfected on time is
mandatory and jurisdictional and, if not complied with,
the appellate court acquires no jurisdiction and the appeal
m u s t be dismissed (Araneta vs. Madrigal & Co., Inc.,
L-26227-28, Oct. 25, 1966; DBP vs. Santos, L-26387,
Sept. 27, 1966; Sec. lfaj, Rule 50).
2. Where, however, the motion to dismiss the appeal

on this ground was filed more t h a n 6 years after the filing
of appellee's brief, without justification for such delay, t h e
motion was properly denied (Sarmiento vs. Salud, et al.,
[Resolution on Motion for Reconsideration], L-25221,
Aug. 18, 1972).
3. The date when the original typewritten record on

appeal was filed in the trial court appears on the date of
the receipt thereof as stamped thereon upon its receipt.
Hence, the filing of the original typewritten record on
appeal in t h e lower court, being a posterior act to its
preparation, the date of the filing thereof is not required
to be stated therein and, consequently, will not appear in
the printed record on appeal filed in the appellate court.
The only exception wherein the date of filing in the trial
court of the original record on appeal is required to be
stated therein is when an amended record on appeal is
subsequently permitted to be filed, for then the date of
t h e filing of t h e original record on a p p e a l within t h e
reglementary period will show whether the appeal was
seasonably perfected (Valera vs. CA, et al., L-29416,
Jan. 28, 1971).
4. Sec. 6, Rule 41 obviously refers to the record on
appeal filed with the trial court, not to the printed record
on appeal filed in the appellate court. At any rate, the
appellate court is in a position to determine the date
aforementioned, by examining the original record on
563
appeal thereto forwarded and, hence, forming p a r t of its

own record (Reyes vs. Carrasco, L-28783, Mar. 31, 1971;
Sison vs. Gatchalian, et al., L-34709, June 15, 1972).
5. It is t h e t r i a l court's duty to determine whether
or not t h e a p p e a l h a s been actually perfected on time
and to allow t h e a m e n d m e n t of t h e record on appeal in
order to include therein any relevant omitted data
(Design Masters, Inc. vs. CA, et al., L-31510, Mar. 31,
1971; Ozaeta, Jr., et al. vs. CA, et al., L-26938, Oct. 29,
1971). If t h e p r i n t e d record on appeal does not show the
d a t e of filing thereof which is s t a m p e d on t h e original
record on appeal, t h e appellate court may ascertain such
d a t e by e x a m i n i n g t h e o r i g i n a l record on a p p e a l and
d e t e r m i n e w h e t h e r or not t h e said record on appeal meets
t h e objective of Sec. 6, Rule 4 1 , and which may be deemed
to have been s u b s t a n t i a l l y complied with (Mintu vs. CA,
et al., L-36854, Sept. 19, 1973; Villarica vs. CA, et al.,
L-28363, May 15, 1974).
6. Formerly, w h e r e t h e p r i n t e d record on appeal did

not contain any a v e r m e n t t h a t t h e a p p e l l a n t s had filed
t h e a p p e a l bond w i t h i n t h e r e g l e m e n t a r y period b u t the
fact of t h e timely filing of such a p p e a l bond was duly
shown on t h e face of t h e original notice of appeal filed
w i t h t h e o r i g i n a l r e c o r d o n a p p e a l o n file w i t h t h e
appellate court, t h e r e was s u b s t a n t i a l compliance with the
provisions of Sec. 6, Rule 41 a n d t h e appeal should not be
dismissed (Alfonso vs. CA, et al., L-37068, July 18, 1974).
This rule of s u b s t a n t i a l compliance w a s also applied to
t h e case of Ever Ice Drop Factory vs. CA, €t al. (L-33366,
Oct. 30, 1972), w h e r e i n t h e printed record on appeal did
not i n c l u d e a p p e l l a n t ' s notice of a p p e a l to show t h e
timeliness thereof (and, formerly, t h e official p a y m e n t of
t h e a p p e a l bond), b u t t h e original copy of said notice of
a p p e a l (and t h e official receipt of p a y m e n t of the appeal
bond, which was a t t a c h e d to said notice of appeal) was
found in t h e original record on a p p e a l on file with the
appellate court.
564
7. Failure of counsel to sign the record on appeal is

not a ground for dismissal of the appeal. The same could
merely be required to be signed by him (Toribio, et al. vs.
Montejo, et al., L-28453, Mar. 21, 1975). The same is
true where the record on appeal consisting of more t h a n
20 pages does not have the requisite subject index and
does not contain the full names of the parties in the caption
a s t h e s e a r e p u r e l y m a t t e r s o f form c o r r e c t i b l e b y
a m e n d m e n t which the trial court may order to be done
(Abuso vs. Acosta, G.R. No. 54343, Sept. 25, 1980). See,
however, Sec. 3, Rule 7 on unsigned pleadings.
8. The " m a t e r i a l d a t a rule" enunciated in Sec. 6,

Rule 41 need not be observed if the trial court issued
an order to t h e effect t h a t the appeal was seasonably
perfected with the filing of the notice of appeal, and the
record on appeal (and, formerly, the appeal bond) within
the reglementary period (Pimentel, et al. vs. CA, et al.,
L-39684, June 27, 1975).
9. The material data rule has been liberalized in the

sense t h a t reliance can be placed on the trial court's order
of approval and its determination of the timeliness of the
appeal, especially when the timeliness of perfection of such
appeal has not been impugned by the appellee who filed
no opposition to the approval by the trial court of the record
on appeal (Saura Import & Export Co., Inc. vs. CA, et al.,
L-34770, May 18, 1978; Abando vs. CA, et al., L-37697,
May 31, 1978). The trial court's approval of the record
on appeal serves to cure whatever defect or omission may
have been committed therein (Compagne des Messageries
vs. CA, et al., L-28381, Sept. 11, 1980).
Sec. 7. Approval of record on appeal. — Upon t h e

filing of t h e record on a p p e a l for approval and if no
objection is filed by t h e a p p e l l e e w i t h i n five (5) d a y s
from r e c e i p t of a c o p y thereof, t h e trial c o u r t may
a p p r o v e it as p r e s e n t e d or u p o n its o w n m o t i o n or
565
at t h e i n s t a n c e of t h e a p p e l l e e , m a y d i r e c t its
amendment by the inclusion of any omitted matters
which are d e e m e d essential to the determination of
t h e i s s u e o f l a w o r fact i n v o l v e d i n t h e a p p e a l . I f
t h e t r i a l c o u r t o r d e r s t h e a m e n d m e n t o f t h e record,
t h e a p p e l l a n t , w i t h i n t h e t i m e l i m i t e d i n t h e order,
or such extension thereof as may be granted, or if
n o t i m e i s fixed b y t h e o r d e r w i t h i n t e n (10) d a y s
from receipt thereof, shall redraft the record by
including therein, in their proper chronological
s e q u e n c e , s u c h a d d i t i o n a l m a t t e r s a s t h e c o u r t may
have directed him to incorporate, and shall
t h e r e u p o n s u b m i t t h e r e d r a f t e d r e c o r d for approval,
u p o n notice to the appellee, in like m a n n e r as the
o r i g i n a l draft. (7a)
S e c . 8. Joint record on appeal. — W h e r e b o t h

p a r t i e s a r e a p p e l l a n t s , t h e y m a y file a j o i n t r e c o r d
o n a p p e a l w i t h i n t h e t i m e fixed b y s e c t i o n 3 o f t h i s
R u l e , o r t h a t f i x e d b y t h e c o u r t . (8a)
NOTES
1. A record on a p p e a l does not have to be set for

h e a r i n g in t h e t r i a l court by t h e appellant, as it is deemed
s u b m i t t e d for approval upon its filing a n d t h e rule merely
r e q u i r e s t h e a d v e r s e p a r t y to file any objection thereto
w i t h i n 5 days (Olvido vs. Ferraris, 90 Phil. 555; Toribio,
et al. vs. Montejo, etc., et al., L-28453, Mar. 21, 1975).
Consequently, non-appearance of counsel for t h e appellant
at t h e h e a r i n g for t h e approval of t h e record on appeal
does not w a r r a n t dismissal of t h e a p p e a l (Heirs of Manuel
Olango vs. CFIof Misamis Oriental, et al, G.R. No. 55864,
April 12, 1982).
2. The court h a s jurisdiction to extend t h e period

for t h e filing of a record on a p p e a l (Moya vs. Barton,
76 Phil 831).
566
3. A record on appeal filed on time, though unsigned

through inadvertence, may be given force and effect where
no impairment of the rights of the adverse p a r t y can be
shown (Toribio, et al. vs. Montejo, etc., et al., supra).
Sec. 9. Perfection of appeal; effect thereof. — A

party's appeal by notice of appeal is d e e m e d
p e r f e c t e d a s t o h i m u p o n t h e filing o f t h e n o t i c e o f
appeal in due time.
A party's a p p e a l by r e c o r d on a p p e a l is d e e m e d
perfected as to him with respect to the subject-
matter thereof upon the approval of the record on
a p p e a l filed in d u e t i m e .
In a p p e a l s by n o t i c e of a p p e a l , t h e c o u r t l o s e s
jurisdiction over the case upon the perfection of the
a p p e a l s filed i n d u e t i m e a n d t h e e x p i r a t i o n o f t h e
time to appeal of the other parties.
In a p p e a l s by r e c o r d on a p p e a l , t h e c o u r t l o s e s
jurisdiction only over the subject-matter thereof
u p o n t h e a p p r o v a l o f t h e record o n a p p e a l filed i n
due time and the expiration of the time to appeal
of the other parties.
In e i t h e r c a s e , prior to t h e t r a n s m i t t a l of t h e
o r i g i n a l r e c o r d o r t h e record o n appeal, t h e c o u r t
may i s s u e orders for the protection and p r e s e r v a t i o n
o f t h e r i g h t s o f t h e p a r t i e s w h i c h d o not i n v o l v e
any matter litigated by the appeal, approve com-
p r o m i s e s , p e r m i t a p p e a l s of i n d i g e n t litigants, order
execution pending appeal in accordance with
s e c t i o n 2 of Rule 39, a n d allow w i t h d r a w a l of t h e
appeal. (9a)
NOTES
1. Under the former procedure as provided in then

Sec. 3, Rule 41, except in specified special cases, a regular
567
appeal was t a k e n by t h e filing of a notice of appeal, an

a p p e a l bond, a n d a record on a p p e a l . Also, u n d e r the
former Sec. 9 of this Rule, the appeal was deemed perfected
upon t h e approval of t h e record on appeal and the appeal
bond other t h a n a cash bond.
Sec. 39 of B.P. Blg. 129 changed t h e requisites for
t a k i n g t h a t appeal by providing t h a t no record on appeal
shall be required, except in appeals in special proceedings
and in other cases w h e r e i n multiple appeals are allowed.
P a r . 18 of t h e I n t e r i m Rules further eliminated t h e need
for an a p p e a l bond a n d r e i t e r a t e d t h e rule t h a t a record
on a p p e a l shall be dispensed with, except in appeals in
special proceedings as provided in Rule 109 and in other
cases w h e r e i n m u l t i p l e a p p e a l s a r e allowed. Regular
appeals u n d e r this Rule are, therefore, now t a k e n by record
on appeal which requires approval by the court or by notice
of a p p e a l which does not need such approval, it being
understood t h a t both should be seasonably filed.
The I n t e r i m Rules, however, merely provided as
follows:
" 2 3 . Perfection of appeal. — In c a s e s w h e r e
a p p e a l is t a k e n , t h e perfection of t h e a p p e a l shall be
upon t h e expiration of t h e last day to appeal by any
party.
In cases w h e r e a record on a p p e a l is required

t h e a p p e a l is perfected upon approval thereof by the
court which should be done w i t h i n t e n (10) days."
T h e r e w a s , c o n s e q u e n t l y , a need for clarifying in
e i t h e r mode of a p p e a l w h e n such appeal is deemed
perfected, t h e effect of such perfection upon t h e parties,
when the trial court loses jurisdiction, and over w h a t aspect
of t h e case or proceeding such jurisdiction is lost.
2. U n d e r this a m e n d e d and expanded section, in an

a p p e a l by notice of appeal, a p a r t y ' s a p p e a l is deemed
perfected as to him upon t h e filing of his a p p e a l in due
568
time. While he can withdraw such appeal, he cannot do

so in order to revive the jurisdiction of t h e trial court and
enable him to t a k e another course of action calling for the
exercise of t h a t jurisdiction, such as the filing of a motion
for new trial or reconsideration. This is so because by
filing his notice of appeal, insofar as he is concerned he
has perfected his appeal to the appellate court and it is in
t h a t court where he can pursue any further remedy.
This rule, it should be noted, applies individually and
only to each of t h e p a r t i e s so circumstanced since the
timeliness of their recourse to appellate remedy depends
on when they respectively received a copy of the judgment
or final order. In the meantime, the trial court still retains
jurisdiction over the case. However, where all the parties
have either t h u s perfected their appeals by filing their
notices of appeal in due time and the period to file such
notice of appeal has lapsed for those who did not do so,
then the trial court loses jurisdiction over the case as of
the last notice of appeal or the expiration of the period to
do so for all the parties.
Virtually the same rules apply in appeals by record
on appeal, except t h a t a party's appeal is deemed perfected
as to him upon t h e a p p r o v a l of his record on a p p e a l
seasonably filed, b u t only with respect to the subject-
m a t t e r thereof. W h e r e all t h e p a r t i e s have e i t h e r
perfected t h e i r a p p e a l s in such m a n n e r or the period
therefor has expired for those who did not do so, then the
trial court loses jurisdiction over the subject-matter of their
appeals upon the approval of their records on appeal and
the expiration of the period to do so of the other parties.
In this mode of appeal, the trial court loses jurisdiction
only over the subject-matter of the respective appeals of
the parties, but retains jurisdiction over the case or special
proceeding from which such appeals were taken. This is
because this mode of appeal is involved and proper in
special proceedings wherein the possibility of several
appeals is contemplated, specifically from the various
569
o r d e r s e n u m e r a t e d i n R u l e 109 w h i c h a r e d e c l a r e d
appealable, and in civil actions where several appeals may
likewise be t a k e n from certain aspects thereof. The lower
court r e t a i n s jurisdiction over t h e special proceeding or
civil action, and since t h e original record r e m a i n s with it
for purposes of further remedies which t h e p a r t i e s may
avail of, a record on appeal has to be filed by any appellant.
T h e s a m e p r o c e d u r e is followed, u n d e r t h e same
rationale, in civil cases which a d m i t of multiple appeals.
For instance, a j u d g m e n t in an action for recovery or for
p a r t i t i o n of p r o p e r t y is s e p a r a t e l y appealable from the
proceedings on that part of the judgment wherein
accounting for receipts from t h e property is ordered as a
p r i m a r y or i n c i d e n t a l relief. W h e n such accounting is
t h e r e a f t e r s u b m i t t e d a n d e i t h e r approved or rejected by
t h e t r i a l court, a n o t h e r a p p e a l lies therefrom.
Special civil actions, b e c a u s e of t h e n a t u r e of the
proceedings therein, provide further examples. In
expropriation (Rule 67), an order d e t e r m i n i n g t h e right
of the plaintiff to expropriate and the subsequent
adjudication on t h e issue of j u s t compensation may be the
subject of s e p a r a t e a p p e a l s . In judicial foreclosure of
mortgage (Rule 68), t h e j u d g m e n t in t h e main case on the
r i g h t to foreclose, t h e order confirming t h e foreclosure
sale, a n d t h e deficiency j u d g m e n t a g a i n s t a third-party
m o r t g a g o r may be t h e subject of s e p a r a t e appeals. In
judicial partition (Rule 69), an order directing t h e partition
of t h e land over t h e objection of a p a r t y who claims total
ownership thereof is appealable, a n d a n o t h e r a p p e a l may
be t a k e n from t h e j u d g m e n t r e n d e r e d on t h e project or
s c h e d u l e of p a r t i t i o n s u b m i t t e d by t h e c o m m i s s i o n e r s
appointed by t h e court for t h a t purpose.
3. After t h e perfection of t h e a p p e a l by e i t h e r mode,

the trial court loses jurisdiction over t h e case or the subject-
m a t t e r involved in t h e appeal, as t h e case may be. In
either instance, and before t h e t r a n s m i t t a l to t h e appellate
570
RULE 41 APPEAL FROM THE S E C . 10
court of the original record or the record on appeal, t h e

trial court still retains its so-called residual jurisdiction to
issue protective o r d e r s , approve compromises, p e r m i t
appeals of indigent litigants and, as has been added by
amendment of this section, to order discretionary execution
and to allow withdrawal of the appeal.
4. T h a t additional power of the trial court to order
discretionary execution under this amended section should,
however, be correlated with the provisions of Sec. 2, Rule
39 which provides t h a t it may do so "(o)n motion of the
prevailing p a r t y with notice to the adverse party filed in
the trial court while it has jurisdiction over the case and is
in possession of either the original record or the record on
appeal x x x at the time of the filing of such motion." It
f u r t h e r p r o v i d e s t h a t a f t e r t h e t r i a l c o u r t h a s lost
jurisdiction, the motion for execution pending appeal may
be filed in the appellate court.
This is of particular significance in appeals by notice
of appeal wherein after the appeal has been perfected,
the original record is transmitted to the appellate court
since the trial court loses jurisdiction over the case. In
appeals by record on appeal, however, this section may
still have qualified applicability since after perfection of
the appeal, the trial court loses jurisdiction only over the
subject-matter of t h a t appeal but retains jurisdiction over
t h e special proceeding or civil action and t h e original
records thereof.
5. It has formerly been held t h a t even if the appeal
has already been perfected but t h e records have not
yet been transmitted to the appellate court, the trial court
still has jurisdiction to set aside its order approving the
record on appeal (Cabungcal vs. Fernandez, L-16520,
April 20, 1964). Also, the rule is t h a t an interlocutory
order remains under the control of the court and can be
modified or rescinded before e n t r y of final j u d g m e n t
571
(Larrobis us. Wislezemers, 42 Phil. 401). It is believed

t h a t these doctrines still apply.
S e c . 10. Duty of clerk of court of the lower court upon

perfection of appeal. — W i t h i n t h i r t y (30) d a y s after
p e r f e c t i o n o f all t h e a p p e a l s i n a c c o r d a n c e w i t h t h e
p r e c e d i n g s e c t i o n , i t s h a l l b e t h e d u t y o f t h e clerk
of court of the lower court:
(a) T o v e r i f y t h e c o r r e c t n e s s o f t h e o r i g i n a l
r e c o r d o r t h e r e c o r d o n a p p e a l , a s t h e c a s e m a y be,
a n d t o m a k e a c e r t i f i c a t i o n o f its c o r r e c t n e s s ;
(b) T o v e r i f y t h e c o m p l e t e n e s s o f t h e r e c o r d s
t h a t w i l l b e t r a n s m i t t e d t o t h e a p p e l l a t e court;
(c) I f f o u n d t o b e i n c o m p l e t e , t o t a k e s u c h
m e a s u r e s as may be required to complete the
records, availing of the authority that he or the
c o u r t m a y e x e r c i s e for t h i s p u r p o s e ; a n d
(d) T o t r a n s m i t t h e r e c o r d s t o t h e a p p e l l a t e
court.
I f t h e e f f o r t s t o c o m p l e t e t h e r e c o r d s fail, h e
shall indicate in his letter of transmittal the exhibits
or transcripts not included in the records being
t r a n s m i t t e d t o t h e a p p e l l a t e c o u r t , t h e r e a s o n s for
their non-transmittal, and the steps taken or that
could be taken to have t h e m available.
The clerk of court shall furnish the parties with
copies of his letter of transmittal of the records to
t h e a p p e l l a t e c o u r t . (10a)
Sec. 11. Transcript. — U p o n t h e p e r f e c t i o n of t h e

appeal, the clerk shall immediately direct the
stenographers concerned to attach to the record of
t h e c a s e f i v e (5) c o p i e s o f t h e t r a n s c r i p t s o f t h e
testimonial evidence referred to in the record on
appeal. The stenographers concerned shall
572
transcribe such testimonial evidence and shall

p r e p a r e a n d affix t o t h e i r t r a n s c r i p t s a n i n d e x
containing the names of the witnesses and the page
w h e r e i n t h e i r t e s t i m o n i e s are found, a n d a list of
the exhibits and the pages wherein each of them
appears to have been offered and admitted or
r e j e c t e d b y t h e trial court. The transcripts shall
b e t r a n s m i t t e d t o t h e clerk o f t h e trial c o u r t w h o
shall t h e r e u p o n a r r a n g e t h e s a m e i n t h e o r d e r i n
w h i c h t h e w i t n e s s e s t e s t i f i e d a t t h e trial, a n d s h a l l
c a u s e t h e p a g e s t o b e n u m b e r e d c o n s e c u t i v e l y . (12a)
Sec. 12. Transmittal. — T h e c l e r k of t h e t r i a l

court shall transmit to the appellate court the
original record or the approved record on appeal
w i t h i n t h i r t y (30) d a y s from t h e p e r f e c t i o n o f
the appeal, together with the proof of payment of
t h e a p p e l l a t e c o u r t d o c k e t a n d o t h e r lawful f e e s ,
a certified true copy of the m i n u t e s of the
proceedings, the order of approval, the certificate
of correctness, the original documentary evidence
referred to therein, and the original and three
(3) c o p i e s o f t h e t r a n s c r i p t s . Copies of the
transcripts and certified true copies of the
documentary evidence shall remain in the lower
c o u r t for t h e e x a m i n a t i o n of t h e parties. (11a)
NOTE
1. The former rule was t h a t although the clerk of

the lower court has the duty to elevate the records to
the appellate court, the appellant must see to it t h a t such
d u t y is complied with, o t h e r w i s e t h e a p p e a l can be
dismissed for failure to prosecute (Sarmiento vs. IAC, et
al., G.R. Nos. 75409-10, Aug. 17, 1987). This was often
criticized since it in effect penalized the appellant for the
failure of the clerk to comply with his official duties.
573
It would a p p e a r t h a t such doctrine w a s based on

Sec. 1(c) of t h e former Rule 50 which considered as a
g r o u n d for d i s m i s s a l of t h e a p p e a l t h e "failure of the
a p p e l l a n t to prosecute his a p p e a l u n d e r section 3 of Rule
46." T h a t provision referred to declared, in t u r n , t h a t
if t h e record on a p p e a l was not received by t h e appellate
court w i t h i n 30 days, t h e appellee may obtain an order
directing the t r a n s m i t t a l of the same or to have the
a p p e a l declared as having been abandoned for failure to
prosecute.
Both provisions, t h a t is, P a r . (c) of Sec. 1, Rule 50
and Sec. 3, Rule 46, have been eliminated in these revised
Rules. This m a k e s evident t h e fact t h a t t r a n s m i t t a l of the
record should be t h e sole responsibility of t h e clerk of court,
as indeed it m u s t be so. It will also be noted t h a t Sec. 10
of t h i s Rule, as now amended, m a k e s it t h e further duty
of t h e clerk of court to furnish t h e p a r t i e s with copies of
his letter of t r a n s m i t t a l of t h e records to the appellate court,
t o e n a b l e t h e l a t t e r t o m o n i t o r o r verify t h e clerk's
compliance w i t h his duty to do so.
S e c . 13. Dismissal of appeal. — P r i o r to t h e t r a n s -

mittal of the original record or the record on appeal
to the a p p e l l a t e court, the trial court may,
motu proprio or on m o t i o n , d i s m i s s t h e a p p e a l for
h a v i n g b e e n t a k e n o u t o f t i m e o r for n o n - p a y m e n t
of the docket and other lawful fees within the
reglementary period. (13a) (As amended in A.M.
No. 00-2-10-SC, effective May 1, 2000)
NOTES
1. A motion to dismiss t h e a p p e a l on the foregoing

ground may also be filed in t h e appellate court (Sec. lfb],
Rule 50).
2. The failure of t h e appellee to move for dismissal

in t h e t r i a l court of an appeal perfected out of time does
574
not prevent him from filing such a motion to dismiss in

the appellate court as it involves the appellate jurisdiction
of the latter court (Garganta vs. CA, et al., 105 Phil. 421).
I n one case, t h e S u p r e m e Court held t h a t w h e r e t h e
appellant had already paid for the printing of the record
on appeal and the docket fee and had already filed his
brief, the appellee is estopped on equitable grounds from
raising such issue since, by his inaction, he had virtually
acquiesced t h a t t h e delay was justified (Santiago, et al.
vs. Valenzuela, 78 Phil. 397). However, in the later case
of Arellano, et al. vs. CA, et al. (L-31816, Nov. 24, 1972),
it was held t h a t the Santiago doctrine had been abandoned
in Miranda vs. Guanzon (92 PhiL 168), as the requirement
regarding the perfection of the appeal within the reglemen-
tary period is not only mandatory but jurisdictional.
See, however, the discussion on estoppel by laches
on this matter, s t a r t i n g from Note 17 under the General
Principles at the beginning of this volume.
3. It has been held t h a t where the appellant failed
to perfect his appeal on time due to fraud, accident, mistake
or excusable negligence and his appeal was dismissed by
the trial court, his remedy is a petition for relief, under
Rule 38, from such order dismissing his appeal. If the
petition is denied, he can appeal from the order denying
his petition (De Luna, et al. vs. Palacio, et al., L-26927,
Dec. 27, 1969). The recourse to a petition for relief, as
therein stated, is still applicable provided the conditions
therefor under Rule 38 are present. However, the order
denying the petition for relief is no longer appealable, the
remedy under Sec. 1 of this Rule being an appropriate
petition under Rule 65.
4. With the revision of the Rules of Civil Procedure

in 1997, and in order to make appeals from the Regional
Trial Court more or less uniform, a number of provisions
in t h e former Rule 41 were e l i m i n a t e d or modified.
Thus, the special rules and requirements for appeals in
575
certiorari, prohibition, m a n d a m u s , quo warranto,

employers' liability cases (then Sec. 17) a n d in habeas
corpus cases (then Secs. 18 to 21) were discarded and no
longer applied to appeals in t h e aforesaid cases. However,
Sec. 3 of Rule 41 w a s subsequently a m e n d e d , effective
J u l y 15, 2001, to restore t h e rule t h a t appeals in habeas
corpus cases shall be t a k e n w i t h i n 48 h o u r s from notice of
t h e j u d g m e n t or order appealed from.
576
RULE 42
PETITION FOR REVIEW FROM THE REGIONAL

TRIAL COURTS TO THE COURT OF APPEALS
S e c t i o n 1. How appeal taken; time for filing. — A

party d e s i r i n g to appeal from a d e c i s i o n of the
R e g i o n a l Trial Court r e n d e r e d in t h e e x e r c i s e of its
a p p e l l a t e j u r i s d i c t i o n m a y file a verified p e t i t i o n for
review w i t h the Court of Appeals, p a y i n g at the
same time to the clerk of said court the
corresponding docket and other lawful fees,
d e p o s i t i n g t h e a m o u n t o f P500.00 for c o s t s , a n d
f u r n i s h i n g t h e R e g i o n a l Trial Court a n d t h e a d v e r s e
party w i t h a c o p y of t h e p e t i t i o n . The p e t i t i o n s h a l l
be filed a n d s e r v e d w i t h i n fifteen (15) d a y s from
notice of the decision sought to be reviewed or of
t h e d e n i a l of p e t i t i o n e r ' s m o t i o n for n e w trial or
r e c o n s i d e r a t i o n filed in d u e t i m e after j u d g m e n t .
U p o n p r o p e r m o t i o n a n d t h e p a y m e n t o f t h e full
a m o u n t o f t h e d o c k e t a n d o t h e r lawful fees and t h e
d e p o s i t for c o s t s b e f o r e t h e e x p i r a t i o n o f t h e
r e g l e m e n t a r y period, the Court of Appeals may
g r a n t an a d d i t i o n a l period of fifteen (15) d a y s o n l y
w i t h i n w h i c h t o file t h e p e t i t i o n for r e v i e w . N o
further e x t e n s i o n shall be g r a n t e d e x c e p t for t h e
m o s t c o m p e l l i n g r e a s o n and i n n o c a s e t o e x c e e d
fifteen (15) d a y s , (n)
NOTES
1. This Rule had its antecedents in the resolution of

t h e C o u r t of Appeals of A u g u s t 12, 1971 which was
necessitated by the fact t h a t R.A. 6031, in amending the
J u d i c i a r y Act, did not prescribe the procedure to be
followed in the review of judgments or final orders of the
former Courts of First Instance on appeal from judgments
577
in cases falling u n d e r t h e exclusive original jurisdiction

of t h e inferior courts. T h a t resolution was adopted in
P a r . 22(b) of t h e I n t e r i m Rules as t h e procedure to be
followed in t h e appellate review of such j u d g m e n t s and
final orders t h u s r e n d e r e d by t h e Regional Trial Court in
t h e exercise of its appellate jurisdiction, and h a s now been
formulated into t h i s Rule, with some modifications.
2. Rule 41, as already stated, refers to regular

appeals from t h e Regional Trial Court exercising original
jurisdiction, while t h i s Rule contemplates t h a t said trial
court is exercising a p p e l l a t e j u r i s d i c t i o n . In t h e first
situation, an a p p e a l on p u r e questions of law cannot be
t a k e n to t h e Court of Appeals and such improper appeal
will be dismissed p u r s u a n t to Sec. 2, Rule 50. However,
as hereafter explained, appeals to t h e Court of Appeals
from t h e Regional T r i a l C o u r t s u n d e r Rules 42 and 43
may be made solely on questions of law.
S e c . 2. Form and contents. — T h e p e t i t i o n s h a l l

b e filed i n s e v e n (7) l e g i b l e c o p i e s , w i t h t h e o r i g i n a l
c o p y i n t e n d e d for t h e c o u r t b e i n g i n d i c a t e d a s
s u c h b y t h e p e t i t i o n e r , a n d s h a l l (a) s t a t e t h e full
names of the parties to the case, without impleading
the lower courts or judges thereof either as
p e t i t i o n e r s o r r e s p o n d e n t s ; (b) i n d i c a t e t h e s p e c i f i c
m a t e r i a l d a t e s s h o w i n g t h a t i t w a s filed o n t i m e ;
(c) s e t f o r t h c o n c i s e l y a s t a t e m e n t o f t h e m a t t e r s
involved, the issues raised, the specification of
errors of fact or law, or both, allegedly committed
by the Regional Trial Court, and the reasons or
a r g u m e n t s r e l i e d u p o n for t h e a l l o w a n c e o f t h e
a p p e a l ; (d) be a c c o m p a n i e d by c l e a r l y l e g i b l e
duplicate originals or true copies of the judgments
o r final o r d e r s o f b o t h l o w e r c o u r t s , c e r t i f i e d c o r r e c t
b y t h e c l e r k o f c o u r t o f t h e R e g i o n a l Trial Court,
the requisite number of plain copies thereof and of
the pleadings and other material portions of the
578
RULE 42 PETITION FOR REVIEW SEC. 2
FROM T H E RTC TO T H E CA
record as would support the allegations of the

petition.
The petitioner shall also submit together with
t h e p e t i t i o n a c e r t i f i c a t i o n u n d e r o a t h t h a t he h a s
not theretofore commenced any other action
i n v o l v i n g t h e s a m e i s s u e s i n t h e S u p r e m e Court, t h e
Court of A p p e a l s or different d i v i s i o n s thereof, or
any other tribunal or agency; if there is such other
action or proceeding, he must state the status of
t h e s a m e , a n d if he s h o u l d t h e r e a f t e r l e a r n t h a t a
s i m i l a r a c t i o n o r p r o c e e d i n g h a s b e e n filed o r i s
p e n d i n g b e f o r e t h e S u p r e m e Court, t h e C o u r t o f
A p p e a l s , or d i f f e r e n t d i v i s i o n s thereof, or a n y o t h e r
tribunal or agency, he undertakes to promptly
inform t h e a f o r e s a i d c o u r t s and o t h e r t r i b u n a l o r
a g e n c y t h e r e o f w i t h i n five ( 5 ) d a y s t h e r e f r o m , (n)
NOTES
1. The first p a r a g r a p h details the form and contents

required for the sufficiency in form and substance of the
petition. As now provided herein, the appeal under this
Rule may be on either questions of fact or of law or on
mixed questions of fact and law. It further specifically
states t h a t the lower courts or judges t h a t rendered the
j u d g m e n t or final order complained of should not be
i m p l e a d e d as p a r t i e s . The s a m e p r o h i b i t i o n is now
provided in p e t i t i o n s for review on c e r t i o r a r i u n d e r
Rule 45, since these are petitions for purposes of appeal
and not p e t i t i o n s in original actions. The other
requirements, which will also be found in the subsequent
Rules, are taken from Revised Circular No. 1-88 which
was adopted by the Supreme Court purposely for dispatch
in appellate proceedings.
2. The second paragraph, herein referred to as the
certification against forum shopping, is also incorporated
in the subsequent Rules by way of detailed implementation
579
RULE 42 R E M E D I A L LAW C O M P E N D I U M S E C S . 3 , 4-5
of P a r . 17 of t h e I n t e r i m Rules.
Sec. 3. Effect of failure to comply with requirements.

— T h e f a i l u r e o f t h e p e t i t i o n e r t o c o m p l y w i t h any
of the f o r e g o i n g r e q u i r e m e n t s r e g a r d i n g the
p a y m e n t of the d o c k e t and other lawful fees, the
d e p o s i t for c o s t s , p r o o f o f s e r v i c e o f t h e p e t i t i o n ,
a n d t h e c o n t e n t s o f a n d t h e d o c u m e n t s w h i c h should
a c c o m p a n y the petition shall be sufficient ground
for t h e d i s m i s s a l thereof, (n)
NOTE
1. This section is likewise based on t h e provisions of

Revised Circular No. 1-88 which, as already stated, was
devised to e l i m i n a t e t h e causes of judicial backlog and
delay in light of t h e experience of t h e appellate courts.
S e c . 4. Action on the petition. — T h e C o u r t of

A p p e a l s m a y r e q u i r e t h e r e s p o n d e n t t o file a
c o m m e n t on the petition, not a motion to dismiss,
w i t h i n t e n (10) d a y s f r o m n o t i c e , o r d i s m i s s t h e
petition if it finds the same to be patently without
m e r i t , p r o s e c u t e d m a n i f e s t l y for d e l a y , o r t h a t t h e
q u e s t i o n s raised therein are too unsubstantial to
r e q u i r e c o n s i d e r a t i o n , (n)
S e c . 5. Contents of comment. — T h e c o m m e n t of
t h e r e s p o n d e n t s h a l l b e f i l e d i n s e v e n (7) l e g i b l e
copies, accompanied by certified true copies of such
material portions of the record referred to therein
t o g e t h e r w i t h o t h e r s u p p o r t i n g p a p e r s a n d s h a l l (a)
state whether or not he accepts the statement of
m a t t e r s i n v o l v e d i n t h e p e t i t i o n ; (b) p o i n t o u t s u c h
insufficiencies or inaccuracies as he believes exist
i n p e t i t i o n e r ' s s t a t e m e n t o f m a t t e r s i n v o l v e d but
w i t h o u t r e p e t i t i o n ; a n d (c) s t a t e t h e r e a s o n s w h y
580
RULE 42 PETITION FOR REVIEW S E C S . 6-7
the petition should not be given due course. A copy

t h e r e o f s h a l l b e s e r v e d o n t h e p e t i t i o n e r , (n)
Sec. 6. Due course. — If u p o n t h e f i l i n g of t h e

comment or such other pleadings as the court
may allow or require, or after the e x p i r a t i o n of
t h e p e r i o d for t h e filing t h e r e o f w i t h o u t s u c h
comment or pleading having been submitted, the
Court of A p p e a l s finds prima facie t h a t t h e l o w e r
c o u r t h a s c o m m i t t e d a n e r r o r o f fact o r l a w t h a t
will w a r r a n t a reversal or modification of the
appealed decision, it may accordingly give due
c o u r s e t o t h e p e t i t i o n , (n)
Sec. 7. Elevation of record. — W h e n e v e r t h e Court

of A p p e a l s d e e m s it n e c e s s a r y , it m a y order t h e clerk
o f c o u r t o f t h e R e g i o n a l Trial Court t o e l e v a t e t h e
o r i g i n a l r e c o r d o f t h e c a s e i n c l u d i n g t h e oral a n d
d o c u m e n t a r y e v i d e n c e w i t h i n fifteen (15) d a y s from
n o t i c e , (n)
NOTES
1. The Court of Appeals may dismiss the petition

outright or require a comment thereon. Depending on
the complexity or ambiguity of the issues for resolution, it
could also require subsequent exchanges by the parties,
such as the filing of a reply and a rejoinder, in the sound
exercise of its discretion. See, however, Appendix R.
2. If w a r r a n t e d from t h e e x c h a n g e s u n d e r t h e
guideline in Sec. 6, the appellate court may give due course
to the petition and, for purposes of its decision therein, it
may require the filing of memoranda. The original record
in the lower court may be ordered elevated for that purpose
or for such other purposes as determined by the appellate
court.
581
Sec. 8. Perfection of appeal; effect thereof. — (a) Upon

t h e t i m e l y f i l i n g o f a p e t i t i o n for r e v i e w a n d t h e
p a y m e n t of the corresponding docket and other
lawful fees, the appeal is d e e m e d perfected as to the
petitioner.
The Regional Trial Court loses jurisdiction
over the case upon the perfection of the appeals
filed i n d u e t i m e a n d t h e e x p i r a t i o n o f t h e t i m e t o
appeal of the other parties.
However, before the Court of Appeals gives
d u e c o u r s e t o t h e p e t i t i o n , t h e R e g i o n a l Trial Court
m a y i s s u e o r d e r s for t h e p r o t e c t i o n a n d p r e s e r -
v a t i o n o f t h e r i g h t s o f t h e p a r t i e s w h i c h d o not
involve any matter litigated by the appeal, approve
compromises, permit appeals of indigent litigants,
order execution p e n d i n g appeal in accordance with
section 2 of Rule 39, and allow w i t h d r a w a l of the
appeal.
(b) E x c e p t i n c i v i l c a s e s d e c i d e d u n d e r t h e Rule
on S u m m a r y Procedure, the appeal shall stay the
j u d g m e n t o r final o r d e r u n l e s s t h e C o u r t o f A p p e a l s ,
t h e l a w , o r t h e s e R u l e s s h a l l p r o v i d e o t h e r w i s e , (n)
NOTES
1. The first two p a r a g r a p h s r e i t e r a t e t h e rule as to

w h e n t h e a p p e l l a t e c o u r t acquires, a n d t h e t r i a l court
correspondingly loses, jurisdiction over t h e case save to
perform or allow certain acts to be done in connection with
t h e c a s e i n t h e s a m e m a n n e r a s p r o v i d e d i n t h e last
p a r a g r a p h of Sec. 9, Rule 4 1 .
2. The t h i r d p a r a g r a p h is t h e g e n e r a l rule t h a t a
perfected a p p e a l s t a y s t h e challenged j u d g m e n t or final
order. T h a t stay of j u d g m e n t , however, is not applicable
to civil c a s e s u n d e r t h e Rule on S u m m a r y P r o c e d u r e
which, as revised, provides in Sec. 21 thereof t h a t the
582
RULE 42 PETITION FOR REVIEW SEC. 9
decision of the Regional Trial Court in civil cases governed

by said Rule, i n c l u d i n g forcible e n t r y a n d u n l a w f u l
detainer cases, shall be immediately executory without
prejudice to a further appeal t h a t may be taken therefrom,
repealing for t h a t purpose Sec. 10 of then Rule 70. This
is reiterated in Sec. 21, Rule 70 of the present revised Rules.
For other similar exceptions, see Sec. 4, Rule 39 and
the explanatory notes thereon. See also Sec. 12, Rule 43
which t r e a t s of the effect of appeals from the quasi-judicial
agencies concerned.
Sec. 9. Submission for decision. — If t h e p e t i t i o n

i s g i v e n d u e c o u r s e , t h e Court o f A p p e a l s m a y s e t
t h e c a s e for oral a r g u m e n t o r r e q u i r e t h e p a r t i e s t o
s u b m i t m e m o r a n d a w i t h i n a p e r i o d of fifteen (15)
days from notice. The case shall be deemed
s u b m i t t e d for d e c i s i o n u p o n t h e filing o f t h e l a s t
pleading or memorandum required by these Rules
or by t h e Court itself, (n)
NOTES
1. The a p p e l l a t e court may, motu proprio or on

motion, set the case on certain specified issues thereof for
oral a r g u m e n t . It may require further memoranda after
such oral argument or allow the submission of memoranda
in lieu of oral argument.
2. The provision here as to when the case is deemed
submitted for decision, which is important in view of the
mandatory periods for the rendition of judgment under
Sec. 15(1), Art. VIII of the 1987 Constitution, is likewise
based on and in accordance with Par. (2) of the same
section of the aforecited Constitutional provision.
583
RULE 43
A P P E A L S F R O M T H E [ C O U R T O F TAX A P P E A L S
AND] Q U A S I - J U D I C I A L A G E N C I E S TO
THE COURT OF APPEALS*
S e c t i o n 1. Scope. — T h i s R u l e s h a l l a p p l y to
a p p e a l s [from j u d g m e n t s or final o r d e r s of t h e Court
o f T a x A p p e a l s a n d ] f r o m a w a r d s , j u d g m e n t s , final
orders or resolutions of or authorized by any quasi-
judicial agency in the exercise of its quasi-judicial
f u n c t i o n s . A m o n g t h e s e a g e n c i e s a r e t h e Civil
Service Commission, Central Board of Assessment
Appeals, Securities and Exchange Commission,
Office of t h e P r e s i d e n t , L a n d R e g i s t r a t i o n
A u t h o r i t y , S o c i a l S e c u r i t y C o m m i s s i o n , Civil
Aeronautics Board, Bureau of Patents, Trademark
a n d T e c h n o l o g y Transfer,** N a t i o n a l E l e c t r i f i c a t i o n
Administration, Energy Regulatory Board, National
Telecommunications Commission, Department of
A g r a r i a n R e f o r m u n d e r R e p u b l i c Act 6657,
Government Service Insurance System, Employees
Compensation Commission, Philippine Atomic
Energy Commission, Board of Investments,
Construction Industry Arbitration Commission, and
v o l u n t a r y a r b i t r a t o r s a u t h o r i z e d b y l a w . (n)
NOTES
1. This Rule w a s originally embodied in S u p r e m e

C o u r t C i r c u l a r N o . 1-91 a n d e v e n t u a l l y b e c a m e i t s
Revised A d m i n i s t r a t i v e C i r c u l a r No. 1-95 which took
effect on J u n e 1, 1995, w i t h modifications c a u s e d by
' S e e N o t e 2 of S e c t i o n 1 of t h i s Rule.
" S e e r e o r g a n i z e d b u r e a u s a s p r o v i d e d i n R.A. 8 2 9 3 ( I n t e l l e c t u a l
Property Code).
584
RULE 43 APPEALS FROM QUASI-JUDICIAL A G E N C I E S SEC. 1
TO THE COURT OF APPEALS
a m e n d m e n t s to Sec. 9, B.P. Blg. 129 by R.A. 7902. Said

Sec. 9, as amended, constitutes the substantive basis for
this Rule, and vests "exclusive appellate jurisdiction over
all final judgments, decisions, resolutions, orders or awards
of R e g i o n a l T r i a l C o u r t a n d q u a s i - j u d i c i a l a g e n c i e s ,
instrumentalities, boards or commissions" in the Court of
Appeals, with t h e exception of those falling within t h e
appellate jurisdiction of t h e S u p r e m e Court u n d e r t h e
Constitution, the Labor Code and the Judiciary Act.
2. Decisions of the Court of Tax Appeals a r e now

appealable to t h e Supreme Court by petition for review
on certiorari u n d e r Rule 45, p u r s u a n t to R.A. 9282 which
amended R.A. 1125 (see Appendix CQ.
3. The "voluntary a r b i t r a t o r s a u t h o r i z e d by law"

include the voluntary arbitrator appointed and accredited
u n d e r t h e Labor Code or p u r s u a n t to the provisions of
R.A. 876, as they a r e considered included in the t e r m
"quasi-judicial i n s t r u m e n t a l i t i e s " (Luzon Development
Bank vs. Association of Luzon Development Bank
Employees, et al., G.R. No. 120319, Oct. 6, 1995).
4. A p r o s e c u t o r c o n d u c t i n g a p r e l i m i n a r y
investigation performs a quasi-judicial function,
but his office is not a quasi-judicial body. Unlike the
quasi-judicial agencies contemplated in this Rule, it does
not e x e r c i s e a d j u d i c a t o r y or r u l e - m a k i n g functions.
The preliminary investigation conducted therein is not a
trial of the case on the merits but only determines whether
a crime h a s been committed and t h a t t h e accused is
probably guilty thereof. While the prosecutor is making
t h a t determination, he is not acting as a quasi-court since
it is the court itself t h a t will pass judgment on the accused.
Hence, the Office of the Prosecutor is not a quasi-judicial
body and its action a p p r o v i n g the filing of an infor-
mation is not appealable to the Court of Appeals under
Rule 43 (Bautista vs. CA, et al., G.R. No. 143375,
July 6, 2001); Orosa vs. Roa, G.R. No. 140423,
585
July 14, 2006 cf. Alcaraz vs. Gonzales, G.R. No. 164715
Sept. 20, 2006).
S e c . 2. Cases not covered. — T h i s R u l e s h a l l not

a p p l y t o j u d g m e n t s o r final o r d e r s i s s u e d u n d e r t h e
L a b o r C o d e o f t h e P h i l i p p i n e s , (n)
NOTES
1. J u d g m e n t s a n d final orders or resolutions of the

National Labor Relations Commission a r e now reviewable,
in t h e first i n s t a n c e , by t h e Court of Appeals on certiorari
u n d e r Rule 65 (see Note 2 u n d e r Sec. 4 thereof), b u t those
of t h e Employees C o m p e n s a t i o n Commission should be
b r o u g h t to t h e C o u r t of Appeals t h r o u g h a petition for
review u n d e r t h i s Rule. Also, appeals from t h e Office of
t h e O m b u d s m a n in a d m i n i s t r a t i v e disciplinary cases are
now covered by t h i s Rule (Fabian vs. Desierto, etc., et al.,
G.R. No. 129742, Sept. 16, 1998).
2. Special r u l e s of procedure have also been adopted

for cases formerly w i t h i n t h e jurisdiction and adjudicatory
processes of t h e Securities and Exchange Commission.
In A.M. No. 01-2-04-SC, the S u p r e m e Court
p r o m u l g a t e d I n t e r i m R u l e s o f P r o c e d u r e for I n t r a -
c o r p o r a t e C o n t r o v e r s i e s , effective April 1, 2001
(Appendix W).
In A.M. No. 00-8-10-SC, in its Resolution promulgated
on S e p t e m b e r 4, 2001, t h e S u p r e m e Court clarified the
legal fees to be collected and the applicable period of appeal
in cases formerly cognizable by the Securities and
E x c h a n g e Commission, effective October 1, 2001
(Appendix X). This w a s further a m e n d e d in an en banc
resolution, effective December 10, 2002.
S u b s e q u e n t l y , for t h e r e a s o n s s t a t e d t h e r e i n , the
S u p r e m e Court in its resolution of S e p t e m b e r 14, 2004 in
A.M. No. 04-9-07-SC clarified t h e proper mode of appeal
586
RULE 43 APPEALS FROM QUASI-JUDICIAL AGENCIES SEC. 3
for cases involving corporate rehabilitation a n d i n t r a -

corporate controversies, effective S e p t e m b e r 30, 2004
(Appendix Y).
S e c 3. Where to appeal. — An a p p e a l u n d e r t h i s
R u l e m a y b e t a k e n t o t h e Court o f A p p e a l s w i t h i n
the period and in the manner herein provided,
w h e t h e r t h e a p p e a l i n v o l v e s q u e s t i o n s o f fact, o f
law, o r m i x e d q u e s t i o n s o f fact a n d l a w . (n)
NOTES
1. This is another instance where an appellate review

solely on a question of law may be sought in t h e Court of
Appeals instead of the Supreme Court. The same
procedure obtains in appeals from the Regional Trial Court
where it decided the case in the exercise of its appellate
jurisdiction, as regulated by Rule 42.
2. As a g e n e r a l p r o p o s i t i o n , a p p e a l s on p u r e
questions of law are brought to the Supreme Court since
Sec. 5(2)(e), Art. VIII of the Constitution includes in the
enumeration of cases within its jurisdiction "(a)ll cases in
which only an e r r o r or q u e s t i o n of law is involved."
It should not be overlooked, however, t h a t t h e s a m e
provision vesting jurisdiction in the Supreme Court of the
cases enumerated therein is prefaced by the statement t h a t
it may "(r)eview, revise, reverse, modify, or affirm on
appeal or certiorari as the law or the Rules of Court may
provide," the judgments or final orders of lower courts in
the cases therein enumerated. Accordingly, the aforesaid
provisions of Rules 42 and 43 constitute the exceptions.
For t h a t matter, this is the same reason why appeals
from the judgment or final order of the inferior courts,
even on p u r e q u e s t i o n s of law, a r e appealable to t h e
Regional Trial Court in line with the specific provision
therefor in Sec. 1, Rule 40.
587
Sec. 4. Period of appeal. — T h e a p p e a l s h a l l

b e t a k e n w i t h i n f i f t e e n (15) d a y s from n o t i c e o f the
award, j u d g m e n t , final order or resolution, or
from the date of its last publication, if publication
i s r e q u i r e d b y l a w for i t s e f f e c t i v i t y , o r o f t h e
d e n i a l of p e t i t i o n e r ' s m o t i o n for n e w trial or
r e c o n s i d e r a t i o n d u l y filed i n a c c o r d a n c e w i t h t h e
g o v e r n i n g l a w of t h e c o u r t or a g e n c y a quo. Only
o n e (1) m o t i o n for r e c o n s i d e r a t i o n s h a l l b e a l l o w e d .
U p o n p r o p e r m o t i o n a n d t h e p a y m e n t o f t h e full
a m o u n t o f t h e d o c k e t fee b e f o r e t h e e x p i r a t i o n o f
t h e r e g l e m e n t a r y p e r i o d , t h e C o u r t o f A p p e a l s may
g r a n t a n a d d i t i o n a l p e r i o d o f f i f t e e n (15) d a y s only
w i t h i n w h i c h t o file t h e p e t i t i o n for r e v i e w . No
f u r t h e r e x t e n s i o n s h a l l b e g r a n t e d e x c e p t for t h e
m o s t c o m p e l l i n g r e a s o n i n n o c a s e t o e x c e e d fifteen
(15) d a y s , (n)
S e c . 5. How appeal taken. — A p p e a l s h a l l be

t a k e n b y f i l i n g a v e r i f i e d p e t i t i o n for r e v i e w i n
s e v e n (7) l e g i b l e c o p i e s w i t h t h e C o u r t o f A p p e a l s ,
with proof of service of a copy thereof on the
a d v e r s e p a r t y a n d o n t h e c o u r t o r a g e n c y a quo.
T h e o r i g i n a l c o p y o f t h e p e t i t i o n i n t e n d e d for t h e
Court of Appeals shall be indicated as such by the
petitioner.
Upon the filing of the petition, the petitioner
shall pay to the clerk of court of the Court of
Appeals the d o c k e t i n g and other lawful fees and
d e p o s i t t h e s u m o f P500.00 for c o s t s . Exemption
from p a y m e n t of d o c k e t i n g and other lawful fees
a n d t h e d e p o s i t for c o s t s m a y be g r a n t e d by
the Court of Appeals upon verified motion setting
forth valid g r o u n d s therefor. If the Court of
A p p e a l s d e n i e s t h e m o t i o n , t h e p e t i t i o n e r s h a l l pay
t h e d o c k e t i n g a n d o t h e r l a w f u l f e e s a n d d e p o s i t for
c o s t s w i t h i n f i f t e e n (15) d a y s f r o m n o t i c e o f t h e
d e n i a l , (n)
588
NOTE
1. In view of the n a t u r e , s u b j e c t - m a t t e r and

p r o c e d u r e in cases before t h e quasi-judicial a g e n c i e s
under their different governing laws, the appellate
procedure and r e q u i r e m e n t s in this Rule are somewhat
different from t h o s e i n r e g u l a r a p p e a l s . T h u s , t h e
periods and requirements for the appeal are more stringent
a n d s p e c i f i c p r o v i s i o n s a r e m a d e for m o t i o n s for
reconsideration and extensions of time.
Sec. 6. Contents of the petition. — T h e p e t i t i o n for

r e v i e w s h a l l (a) s t a t e t h e full n a m e s o f t h e p a r t i e s
to the case, without impleading the court or
agencies either as petitioners or respondents;
(b) c o n t a i n a c o n c i s e s t a t e m e n t o f t h e f a c t s a n d
i s s u e s i n v o l v e d a n d t h e g r o u n d s r e l i e d u p o n for t h e
r e v i e w ; (c) b e a c c o m p a n i e d b y a c l e a r l y l e g i b l e
d u p l i c a t e o r i g i n a l or a c e r t i f i e d t r u e c o p y of t h e
a w a r d , j u d g m e n t , final o r d e r o r r e s o l u t i o n a p p e a l e d
from t o g e t h e r with certified true copies of such
m a t e r i a l p o r t i o n s o f t h e record referred t o t h e r e i n
a n d o t h e r s u p p o r t i n g p a p e r s ; a n d (d) c o n t a i n a
sworn certification against forum shopping as
p r o v i d e d in t h e last p a r a g r a p h of s e c t i o n 2, Rule 42.
The p e t i t i o n s h a l l s t a t e t h e specific m a t e r i a l d a t e s
s h o w i n g t h a t i t w a s filed w i t h i n t h e p e r i o d fixed
h e r e i n . (2a)
NOTE
1. It h a s b e e n c l a r i f i e d t h a t P a r . (c) of t h e
enumerated requirements in Sec. 6, requiring "certified
t r u e copies of the record referred to therein and other
supporting papers," does not mean t h a t all supporting
papers referred to should be certified.
It is significant t h a t in appeals under Rule 42, only
judgments or final orders of the lower courts need to be
589
certified t r u e copies or duplicate originals. The same is

t r u e with respect to a similar requirement in appeals under
Rule 45, a n d in original actions for certiorari u n d e r Rule
65 in relation to Rules 46 a n d 56. There is no plausible
reason why a'different t r e a t m e n t or stricter requirement
should be applied to petitions u n d e r Rule 43 (Cadayona
vs. CA, et al., G.R. No. 128772, Feb. 3, 2000; cf. Uy, et al.
vs. BIR, et al., G.R. No. 129651, Oct. 20, 2000; Gonzales
vs. CSC, et al., G.R. No. 139131, Sept. 27, 2002).
S e c . 7. Effect of failure to comply with requirements.

— T h e f a i l u r e o f t h e p e t i t i o n e r t o c o m p l y w i t h any
of the f o r e g o i n g r e q u i r e m e n t s regarding the
p a y m e n t of t h e d o c k e t and o t h e r lawful fees, the
d e p o s i t for c o s t s , p r o o f o f s e r v i c e o f t h e p e t i t i o n ,
and the c o n t e n t s of and the d o c u m e n t s w h i c h should
a c c o m p a n y the petition shall be sufficient ground
for t h e d i s m i s s a l t h e r e o f , (n)
S e c . 8. Action on the petition. — T h e C o u r t of

A p p e a l s m a y r e q u i r e t h e r e s p o n d e n t to file a
c o m m e n t on the petition, not a motion to dismiss,
w i t h i n t e n (10) d a y s f r o m n o t i c e , o r d i s m i s s t h e
petition if it finds the same to be patently without
m e r i t , p r o s e c u t e d m a n i f e s t l y for d e l a y , o r t h a t t h e
q u e s t i o n s raised therein are too unsubstantial to
r e q u i r e c o n s i d e r a t i o n . (62)
NOTE
1. T h e provisions of t h e S u p r e m e Court's revised

C i r c u l a r s Nos. 1-88 a n d 28-91 have also been adopted in
this Rule, especially on the form and contents of the petition
for review. For failure to comply t h e r e w i t h , or w h e r e the
m e r i t s of the petition do not w a r r a n t consideration,
Secs. 7 a n d 8 a u t h o r i z e t h e o u t r i g h t d i s m i s s a l of the
petition.
690
RULE 43 APPEALS FROM QUASI-JUDICIAL AGENCIES SECS. 9-10
Sec. 9. Contents of comment. — T h e c o m m e n t

s h a l l b e f i l e d w i t h i n t e n (10) d a y s from n o t i c e i n
s e v e n (7) l e g i b l e c o p i e s a n d a c c o m p a n i e d b y c l e a r l y
legible certified true copies of such material
p o r t i o n s o f t h e r e c o r d referred t o t h e r e i n t o g e t h e r
w i t h o t h e r s u p p o r t i n g p a p e r s . The c o m m e n t s h a l l
(a) p o i n t o u t i n s u f f i c i e n c i e s o r i n a c c u r a c i e s i n
p e t i t i o n e r ' s s t a t e m e n t of fact and i s s u e s ; and
(b) s t a t e t h e r e a s o n s w h y t h e p e t i t i o n s h o u l d b e
d e n i e d or d i s m i s s e d . A c o p y t h e r e o f s h a l l be s e r v e d
on the petitioner, and proof of such service shall be
f i l e d w i t h t h e Court o f A p p e a l s . (9a)
NOTE
1. The contents of the comment to be filed by the

respondent is more specifically spelled out in this section
which, aside from the a r g u m e n t s usually required in a
c o m m e n t , a d d i t i o n a l l y calls for t h e s p e c i f i c a t i o n of
insufficiencies or inaccuracies in the s t a t e m e n t of facts
and issues in t h e petition. F u r t h e r m o r e , should any
m a t e r i a l p o r t i o n of t h e record be referred to by t h e
respondent, his comment should be accompanied by legible
certified true copies of t h a t portion.
The appellate court may also require the filing of a
reply b u t f u r t h e r s u b m i s s i o n s a r e g o v e r n e d b y t h e
resolution in A.M. No. 99-2-04-SC (see Appendix R).
Sec. 10. Due course. — If u p o n t h e filing of t h e

comment or such other pleadings or documents as
may be r e q u i r e d or a l l o w e d by t h e Court of A p p e a l s
or u p o n t h e e x p i r a t i o n of t h e period for t h e filing
thereof, and on the basis of the petition or the
r e c o r d s t h e Court of A p p e a l s finds prima facie t h a t
the court or a g e n c y c o n c e r n e d h a s c o m m i t t e d errors
of fact or law t h a t w o u l d w a r r a n t r e v e r s a l or
m o d i f i c a t i o n of t h e a w a r d , j u d g m e n t , final o r d e r or
591
RULE 44 R E M E D I A L LAW C O M P E N D I U M SECS 11-12
r e s o l u t i o n s o u g h t t o b e r e v i e w e d , i t m a y g i v e due
course to the petition; otherwise, it shall dismiss
t h e s a m e . T h e f i n d i n g s o f fact o f t h e c o u r t o r a g e n c y
concerned, w h e n supported by substantial evidence,
s h a l l b e b i n d i n g o n t h e C o u r t o f A p p e a l s , (n)
NOTES
1. W h a t b e a r s specific notice in t h i s section is t h a t

t h e j u r i s p r u d e n t i a l rule t h a t t h e findings of fact of the
court or agency a quo a r e binding on t h e appellate court
h a s now been m a d e a specific rule of procedure. This is
similar to t h e rule on t h e findings of fact of the Court of
A p p e a l s vis-a-vis t h e S u p r e m e C o u r t on a p p e a l to the
latter, and, u n d e r a p p r o p r i a t e circumstances, the case law
c r e a t i n g exceptions to t h a t rule may very well apply to
t h e s i m i l a r provision of t h i s section.
2. S e c . 12 of t h i s R u l e h a s b e e n i n t e r p r e t e d to
m e a n t h a t t h e a p p e a l will not stay t h e award, judgment,
f i n a l o r d e r o r r e s o l u t i o n u n l e s s t h e g o v e r n i n g law
directs o t h e r w i s e (Lapid vs. CA, et al., G.R. No. 142261,
June 29, 2000).
S e c . 11. Transmittal of record. — W i t h i n f i f t e e n

(15) d a y s f r o m n o t i c e t h a t t h e p e t i t i o n h a s b e e n
given d u e course, the Court of Appeals may require
the court or a g e n c y concerned to transmit the
original or a legible certified true copy of the entire
record of the p r o c e e d i n g under review. The record
to be transmitted may be abridged by agreement of
all p a r t i e s to t h e proceeding. The Court of Appeals
may require or permit subsequent correction of or
a d d i t i o n t o t h e r e c o r d . (8a)
S e c . 12. Effect of appeal. — T h e a p p e a l s h a l l not

s t a y t h e a w a r d , j u d g m e n t , final o r d e r o r r e s o l u t i o n
s o u g h t to be r e v i e w e d u n l e s s the Court of Appeals
592
shall direct otherwise upon such terms as it may

d e e m j u s t . (10a)
Sec. 13. Submission for decision. — If t h e p e t i t i o n

i s g i v e n d u e c o u r s e , t h e Court o f A p p e a l s m a y s e t
t h e c a s e for o r a l a r g u m e n t o r r e q u i r e t h e p a r t i e s t o
s u b m i t m e m o r a n d a w i t h i n a p e r i o d of fifteen (15)
days from notice. The case shall be d e e m e d
s u b m i t t e d for d e c i s i o n u p o n t h e filing o f t h e l a s t
pleading or memorandum required by these Rules
or by t h e Court of A p p e a l s , (n)
NOTES
1. A s p e c i a l p r o c e d u r e for t h e t r a n s m i t t a l a n d
contents of the record to be elevated to the Court of Appeals
is provided for in Sec. 11. Also, unlike the rule in other
cases, an appeal u n d e r this Rule shall not stay the award,
j u d g m e n t , final o r d e r or resolution u n l e s s o t h e r w i s e
provided by the Court of Appeals.
2. The provisions of Sec. 13 are similar to those of

Sec. 9 of Rule 42 and as explained in the notes therein.
593
P R O C E D U R E IN THE COURT OF A P P E A L S
RULE 44
ORDINARY APPEALED CASES
S e c t i o n 1. Title of cases. — In all c a s e s a p p e a l e d

to the Court of Appeals under Rule 41, the title of
the c a s e shall r e m a i n as it w a s in the court of origin,
but the party a p p e a l i n g t h e case shall be further
r e f e r r e d t o a s t h e a p p e l l a n t a n d t h e a d v e r s e party
a s t h e a p p e l l e e , ( l a , R46)
NOTE
1. This r e q u i r e m e n t on t h e title of t h e civil cases

w h e n a p p e a l e d is s i m i l a r to t h a t in c r i m i n a l cases as
provided in Sec. 1, Rule 124. The evident purpose is to
avoid confusion in t h e identity of t h e case on appeal in
relation to t h a t which w a s tried and decided by the trial
c o u r t since t h e p a r t y i n i t i a t i n g t h e a p p e a l may not be
t h e principal d e f e n d a n t n a m e d in t h e lower court.
Of course, if t h e title of t h e case commenced in the
t r i a l court is e r r o n e o u s as w h e r e a non-party is impleaded,
s u c h as t h e public r e s p o n d e n t or t h e t r i a l j u d g e or a
n o m i n a l p a r t y who should not be a p a r t y to the
appeal, t h e a p p e l l a t e court may effect t h e corresponding
c h a n g e or correction of t h e title of t h e case on appeal,
indicating in its decision t h e reason for doing so.
S e c . 2. Counsel and guardians. — T h e c o u n s e l

a n d g u a r d i a n s ad litem of t h e p a r t i e s in t h e c o u r t
of origin shall be respectively considered as their
c o u n s e l a n d g u a r d i a n s a d litem i n t h e C o u r t o f
Appeals. When others appear or are appointed,
notice thereof shall be served immediately on the
a d v e r s e p a r t y a n d filed w i t h t h e c o u r t . (2a, R46)
594
R U L E 44 ORDINARY APPEALED CASES S E C S . 3, 4
Sec. 3. Order of transmittal of record. — If t h e

original record or the record on appeal is not
t r a n s m i t t e d t o t h e Court o f A p p e a l s w i t h i n t h i r t y
(30) d a y s after t h e p e r f e c t i o n o f t h e a p p e a l , e i t h e r
party m a y file a m o t i o n w i t h t h e trial c o u r t , w i t h
n o t i c e t o t h e o t h e r , for t h e t r a n s m i t t a l o f s u c h
r e c o r d or r e c o r d on a p p e a l . (31, R46)
NOTES
1. The former Rule provided t h a t if the corresponding

record is not duly and timely received by the Court of
Appeals, aside from the appellee's remedy which has been
retained in this section he may also move the appellate
court to d e c l a r e t h e a p p e a l a b a n d o n e d for failure to
prosecute. As elsewhere observed, it was felt t h a t the
latter alternative is too h a r s h as it punishes the appellant
for the nonfeasance of the clerk of the lower court, hence
only the first remedy is maintained. This will, of course,
be without prejudice to proceeding against the erring clerk
of court for the imposition of administrative or punitive
sanctions.
2. Under the former rule, it was held t h a t the power

to dismiss the appeal under this section pertained to the
appellate court (Sec. lfcj, Rule 50), as the only instance
when the trial court may dismiss an appeal was under
Sec. 13, Rule 41 (Agoncillo vs. CA, et al., L-32094,
Nov. 24, 1972). At t h a t time, Sec. 1(c) of Rule 50 provided,
as a ground for dismissal of the appeal, the "failure of the
appellant to prosecute his appeal under section 3 of Rule
46" (now, Rule 44). T h e s e revised Rules, however,
eliminated t h a t ground for dismissal of an appeal by its
deletion from the enumeration in Sec. 1 of Rule 50, hence
this section has been correspondingly amended.
Sec. 4. Docketing of case. — U p o n r e c e i v i n g t h e

original record or the record on appeal and the
595
accompanying documents and exhibits transmitted

by the lower court, as well as the proof of payment
o f t h e d o c k e t a n d o t h e r l a w f u l f e e s , t h e clerk o f court
o f t h e C o u r t o f A p p e a l s s h a l l d o c k e t t h e c a s e and
n o t i f y t h e p a r t i e s t h e r e o f . (4a, R46)
W i t h i n t e n (10) d a y s f r o m r e c e i p t o f s a i d n o t i c e ,
t h e a p p e l l a n t , i n a p p e a l s b y r e c o r d o n a p p e a l , shall
file w i t h t h e c l e r k o f c o u r t s e v e n (7) c l e a r l y l e g i b l e
copies of the approved record on appeal, together
w i t h t h e p r o o f o f s e r v i c e o f t w o (2) c o p i e s t h e r e o f
upon the appellee.
Any unauthorized alteration, omission or
addition in the approved record on appeal shall be
a g r o u n d for d i s m i s s a l of t h e a p p e a l , (n)
S e c . 5. Completion of record. — W h e r e t h e r e c o r d
of the d o c k e t e d case is incomplete, the clerk of court
of the Court of Appeals shall so inform said court
and r e c o m m e n d to it measures necessary to complete
the record. It shall be the duty of said court to take
appropriate action t o w a r d s the completion of the
r e c o r d w i t h i n t h e s h o r t e s t p o s s i b l e t i m e , (n)
S e c . 6. Dispensing with complete record. — W h e r e

the c o m p l e t i o n of the record could not be
a c c o m p l i s h e d w i t h i n a s u f f i c i e n t p e r i o d a l l o t t e d for
said purpose due to insuperable or extremely
difficult c a u s e s , the court, on its o w n motion or on
m o t i o n of any of t h e parties, m a y declare that the
record and its a c c o m p a n y i n g transcripts and
e x h i b i t s s o far a v a i l a b l e a r e s u f f i c i e n t t o d e c i d e t h e
issues raised in the appeal, and shall issue an order
e x p l a i n i n g t h e r e a s o n s for s u c h d e c l a r a t i o n , (n)
S e c . 7. Appellant's brief. — It s h a l l be t h e d u t y of
t h e a p p e l l a n t t o file w i t h t h e c o u r t , w i t h i n forty-
596
R U L E 44 ORDINARY APPEALED CASES SEC. 8
five (46) d a y s f r o m r e c e i p t o f t h e n o t i c e o f t h e c l e r k
t h a t all t h e e v i d e n c e , o r a l a n d d o c u m e n t a r y , a r e
a t t a c h e d t o t h e r e c o r d , s e v e n (7) c o p i e s o f h i s l e g i b l y
t y p e w r i t t e n , m i m e o g r a p h e d o r p r i n t e d brief, w i t h
p r o o f o f s e r v i c e o f t w o (2) c o p i e s t h e r e o f u p o n t h e
a p p e l l e e . (10a, R46)
Sec. 8. Appellee's brief. — W i t h i n forty-five (46)

d a y s f r o m r e c e i p t o f t h e a p p e l l a n t ' s brief, t h e
a p p e l l e e s h a l l file w i t h t h e c o u r t s e v e n (7) c o p i e s o f
his legibly typewritten, mimeographed or printed
brief, w i t h p r o o f o f s e r v i c e o f t w o (2) c o p i e s t h e r e o f
u p o n t h e a p p e l l a n t . (11a, R46)
Sec. 9. Appellant's reply brief. — W i t h i n t w e n t y

(20) d a y s from r e c e i p t o f t h e a p p e l l e e ' s brief, t h e
a p p e l l a n t m a y file a r e p l y brief a n s w e r i n g p o i n t s in
t h e a p p e l l e e ' s b r i e f n o t c o v e r e d i n h i s m a i n brief.
(12, R46)
NOTES
1. The failure to file appellant's brief on time is a

ground for dismissal of the appeal (Sec. lfej, Rule 50).
However, if the failure to do so is due to caso fortuito
or force majeure (in t h i s case, t h e series of typhoons
and illness of appellant's counsel), the appeal will not
be dismissed (Monticines, et al. vs. CA, et al., L-35913,
Sept. 4, 1973, and cases therein cited).
The expiry of t h e period to file a p p e l l a n t ' s brief
does not a u t o m a t i c a l l y r e s u l t in the dismissal of t h e
appeal or the loss of appellate jurisdiction (Infantado vs.
Liwanag, L-23697, Dec. 28, 1968).
2. It has also been held t h a t if a motion to dismiss
an appeal has been filed, it suspends the running of the
597
period for filing t h e appellant's brief as the same would

be u n n e c e s s a r y should t h e motion be g r a n t e d (Alonso vs.
Rosario, 105 Phil. 654).
3. The failure to file the appellee's brief does not affect

t h e appeal. The filing of t h e reply brief is optional on the
p a r t of t h e appellant.
4. The n u m b e r of copies of t h e briefs to be filed and

s e r v e d h a s b e e n r e d u c e d a n d t h e s a m e a r e n o longer
r e q u i r e d to a l w a y s be p r i n t e d b u t may e i t h e r be type-
w r i t t e n or m i m e o g r a p h e d .
S e c . 10. Time for filing memoranda in special

cases. — In c e r t i o r a r i , p r o h i b i t i o n , m a n d a m u s , q u o
w a r r a n t o a n d habeas corpus c a s e s , t h e p a r t i e s s h a l l
file, i n l i e u o f b r i e f s , t h e i r r e s p e c t i v e m e m o r a n d a
w i t h i n a n o n - e x t e n d i b l e p e r i o d o f t h i r t y (30) d a y s
from receipt of the notice issued by the clerk that
all t h e e v i d e n c e , o r a l a n d d o c u m e n t a r y , i s a l r e a d y
a t t a c h e d t o t h e r e c o r d . (13a, R46)
T h e f a i l u r e of t h e a p p e l l a n t to file his
m e m o r a n d u m within the period therefor may be a
g r o u n d for d i s m i s s a l o f t h e a p p e a l , (n)
NOTES
1. The first p a r a g r a p h of this section, a m e n d a t o r y

of the former practice, r e q u i r e s the submission of
m e m o r a n d a , i n s t e a d of briefs, a n d t h e period for t h e filing
thereof is non-extendible b u t c a n n o t be s h o r t e n e d by the
court.
2. The failure of t h e a p p e l l a n t to seasonably file his

m e m o r a n d u m is a ground for t h e dismissal of t h e appeal
i n t h e s e s p e c i a l c a s e s , a n d S e c . 1(e), R u l e 5 0 h a s
correspondingly been a m e n d e d .
598
RULE 44 ORDINARY APPEALED CASES SECS. 11-13
Sec. 11. Several appellants or appellees or several

counsel for each party. — W h e r e t h e r e a r e s e v e r a l
appellants or appellees, each counsel representing
o n e o r m o r e b u t n o t all o f t h e m s h a l l b e s e r v e d w i t h
o n l y o n e c o p y o f t h e briefs. W h e n s e v e r a l c o u n s e l
represent one appellant or appellee, copies of the
brief m a y b e s e r v e d u p o n a n y o f t h e m . (14a, R46)
Sec. 12. Extension of time for filing briefs. —

E x t e n s i o n o f t i m e for t h e filing o f briefs w i l l n o t
b e a l l o w e d , e x c e p t for g o o d a n d s u f f i c i e n t c a u s e ,
a n d o n l y if t h e m o t i o n for e x t e n s i o n is filed before
the expiration of the time sought to be extended.
(15, R46)
Sec. 13. Contents of appellant's brief. — T h e

appellant's brief shall contain, in the order herein
indicated, the following:
(a) A s u b j e c t i n d e x of t h e m a t t e r in t h e brief
with a digest of the arguments and page references,
and a table of cases alphabetically arranged,
textbooks and statutes cited with references to the
p a g e s w h e r e t h e y are cited;
(b) A n a s s i g n m e n t o f e r r o r s i n t e n d e d t o b e
urged, which errors shall be separately, distinctly
and concisely stated without repetition and
numbered consecutively;
(c) U n d e r t h e h e a d i n g "Statement of t h e Case,"
a c l e a r a n d c o n c i s e s t a t e m e n t of t h e n a t u r e of t h e
a c t i o n , a s u m m a r y of t h e p r o c e e d i n g s , t h e a p p e a l e d
r u l i n g s a n d o r d e r s of t h e court, t h e n a t u r e of t h e
judgment and any other matters necessary to an
understanding of the nature of the controversy,
w i t h page r e f e r e n c e s t o t h e record;
(d) U n d e r t h e h e a d i n g " S t a t e m e n t o f t h e
Facts," a c l e a r a n d c o n c i s e s t a t e m e n t in a n a r r a t i v e
599
f o r m o f t h e f a c t s a d m i t t e d b y b o t h p a r t i e s and o f
those in controversy, together with the substance
of the proof relating t h e r e t o in sufficient detail to
make it clearly intelligible, with page references to
the record;
(e) A c l e a r a n d c o n c i s e s t a t e m e n t of t h e i s s u e s
o f fact o r l a w t o b e s u b m i t t e d t o t h e c o u r t for its
judgment;
(f) U n d e r t h e h e a d i n g " A r g u m e n t , " t h e
a p p e l l a n t ' s a r g u m e n t s o n e a c h a s s i g n m e n t o f error
with page references to the record. The authorities
r e l i e d u p o n s h a l l b e c i t e d b y t h e p a g e o f t h e report
a t w h i c h t h e c a s e b e g i n s a n d t h e p a g e o f t h e report
on w h i c h the citation is found;
(g) U n d e r t h e h e a d i n g "Relief," a s p e c i f i c a t i o n
of the order or j u d g m e n t w h i c h the appellant seeks;
and
(h) I n c a s e s n o t b r o u g h t u p b y r e c o r d o n
appeal, the appellant's brief shall contain, as an
a p p e n d i x , a c o p y o f t h e j u d g m e n t o r final o r d e r
a p p e a l e d from. (16a, R46)
NOTES
1. F o r a discussion of t h e r a t i o n a l e a n d purposes
of t h e m a t t e r s r e q u i r e d to be c o n t a i n e d in appellant's
brief, see De Liano, et al. vs. CA., et al. (G.R. No. 142316,
Nov. 22, 2001).
2. T h e failure of t h e a p p e l l a n t to m a k e a specific
a s s i g n m e n t of e r r o r s in his brief or of page references to
t h e record as r e q u i r e d in t h i s section is a ground for the
d i s m i s s a l of his a p p e a l (Sec. Iff J, Rule 50). See, however,
Philippine Coconut Authority vs. Corona International,
Inc. (G.R. No. 139918, Sept. 29, 2000) directing a liberal
i n t e r p r e t a t i o n of t h i s ground.
600
RULE 44 ORDINARY APPEALED CASES S E C . 13
3. The rule is t h a t only errors specifically assigned

and properly argued in the brief will be considered, except
errors affecting jurisdiction over the subject-matter, as well
as plain and clerical errors. However, the appellate court
may also consider unassigned errors closely related to or
dependent upon an assigned error and properly argued
in the brief (Sec. 8, Rule 51); or unassigned errors which
are necessary for a j u s t decision in the case or, in t h e
interest of justice, if they involve questions passed upon
in the trial court, and are m a t t e r s of record having some
bearing on the issues submitted (Korean Airlines Co., Ltd.
vs. CA, et al., G.R. No. 114061, Aug. 3, 1994; cf. Vda. de
Javellana vs. CA, et al., G.R. No. 60129, July 29, 1983;
De Leon vs. CA, et al, G.R. No. 95511, Jan. 30, 1992).
4. In Viron Transportation Co., Inc. vs. CA, et al.

(G.R. No. 117020, April 4, 2003), t h e S u p r e m e Court
reiterated its holding in Catholic Bishop of Balanga vs.
CA, et al. (G.R. No. 112519, Nov. 14, 1996) w h e r e it
summarized the exceptions to the rule t h a t only errors
assigned in the brief may be considered on appeal, thus;
"Guided by the foregoing precepts, we have ruled
in a n u m b e r of cases t h a t t h e a p p e l l a t e court is
accorded a broad discretionary power to waive the lack
of proper assignment of errors and to consider errors
not assigned. It is clothed with ample authority to
review rulings even if they are not assigned as errors
in the appeal. Inasmuch as the Court of Appeals may
consider grounds other t h a n those touched upon in
the decision of the trial court and uphold the same on
the basis of such other grounds, the Court of Appeals
may with no less authority, reverse the decision of
the trial court on the basis of grounds other t h a n
those raised as errors on appeal. We have applied
this rule, as a matter of exception, in the following
instances:
601
RULE 44 R E M E D I A L LAW C O M P E N D I U M SEC 14
(1) G r o u n d s not assigned as errors b u t affecting

t h e jurisdiction over t h e subject-matter;
(2) M a t t e r s not assigned as errors on appeal but
are evidently plain or clerical errors within the
contemplation of law;
(3) M a t t e r s not assigned as errors on appeal but
consideration of which is necessary in arriving at a
j u s t decision a n d complete resolution of t h e case or to
serve t h e i n t e r e s t s of justice or to avoid dispensing
piecemeal justice;
(4) M a t t e r s not specifically assigned as errors on
a p p e a l b u t raised in t h e t r i a l court and a r e m a t t e r s of
record h a v i n g some b e a r i n g on t h e issue submitted
which t h e p a r t i e s failed to raise or which t h e lower
court ignored;
(5) M a t t e r s not assigned as e r r o r s on appeal but
closely r e l a t e d to an e r r o r assigned; a n d
(6) M a t t e r s not assigned as e r r o r s on appeal but
upon which t h e d e t e r m i n a t i o n of a question properly
assigned is d e p e n d e n t . "
S e c . 14. Contents of appellee's brief. — T h e

appellee's brief shall contain, in the order herein
indicated, the following:
(a) A s u b j e c t i n d e x o f t h e m a t t e r i n t h e brief
with a digest of the arguments and page references,
and a table of cases alphabetically arranged,
textbooks and statutes cited with references to the
pages w h e r e they are cited;
(b) U n d e r t h e h e a d i n g " S t a t e m e n t o f F a c t s , "
the appellee shall state that he accepts the
s t a t e m e n t o f f a c t s i n t h e a p p e l l a n t ' s brief, o r u n d e r
the h e a d i n g "Counter-Statement of Facts," he shall
point out such insufficiencies or inaccuracies as he
b e l i e v e s e x i s t i n t h e a p p e l l a n t ' s s t a t e m e n t o f facts
602
w i t h r e f e r e n c e s t o t h e p a g e s o f the r e c o r d i n s u p p o r t
thereof, but w i t h o u t repetition of m a t t e r s in
a p p e l l a n t ' s s t a t e m e n t o f facts; a n d
(c) U n d e r t h e h e a d i n g " A r g u m e n t , " t h e
a p p e l l e e s h a l l s e t forth h i s a r g u m e n t s i n t h e c a s e
o n e a c h a s s i g n m e n t o f error w i t h p a g e r e f e r e n c e s
to the record. The authorities relied on shall be
cited by the page of the report at which the case
begins and the page of the report on which the
c i t a t i o n is f o u n d . (17a, R46)
NOTES
1. An appellee who h a s not also appealed cannot

m a k e a s s i g n m e n t s of e r r o r s in his brief (Gorospe vs.
Penaflorida, 101 Phil. 886) but he can make a counter-
assignment of errors in order to sustain the j u d g m e n t
(Saenz vs. Mitchel, 60 Phil. 69; La Campaha Food
Products, Inc. vs. PCIB, et al., L-16405, June 30, 1986).
2. An appellee, in his brief, can also argue on issues

raised at the trial to sustain the judgment in his favor on
other grounds, even if the same were not included in the
decision of t h e court a quo nor raised in a p p e l l a n t ' s
assignment of errors or arguments. Hence, the appellate
court can affirm a j u d g m e n t on g r o u n d s ignored or
erroneously decided by the lower court (Relativo vs.
Castro, 76 Phil. 563; Cababasada vs. CA, et al., 83 Phil.
112; Carillo vs. De Paz, L-22061, Oct. 28, 1966; Miguel
vs. CA, et al., L-20274, Oct. 30, 1969). The appellee,
however, cannot assign such errors to have the judgment
modified for, to do so, he must have appealed (Aparri vs.
CA, et al., LI 5947, April 30, 1965; Carbonel vs. CA, et
al., L-40729-30, Jan. 31, 1987).
Sec. 16. Questions that may be raised on appeal. —

W h e t h e r or not t h e a p p e l l a n t h a s filed a m o t i o n for
603
new trial in the court below, he may include in his

a s s i g n m e n t o f e r r o r s a n y q u e s t i o n o f l a w o r fact t h a t
has been raised in the court below and which is
w i t h i n t h e i s s u e s f r a m e d b y t h e p a r t i e s . (18a, R46)
NOTES
1. The a p p e a l can raise only questions of law or fact

t h a t (a) were raised in t h e court below a n d (b) are within
t h e issues framed by t h e p a r t i e s t h e r e i n . An issue which
was n e i t h e r a v e r r e d in the complaint nor raised during
t h e t r i a l in t h e court below cannot be raised for t h e first
time on a p p e a l as it would be offensive to t h e basic rules
of fair play, justice and due process (De la Santa vs. CA,
et al, L-30560, Nov. 18, 1985, a n d cases t h e r e i n cited;
Dihiansan, et al vs. CA, et al, L 49539, Sept. 14, 1987).
However, q u e s t i o n s of jurisdiction based on
considerations of law can be raised in t h e appellate court
for t h e first t i m e , b u t not questions of jurisdiction based
on facts which were not raised in t h e lower court (Gala
vs. Rodriguez, 25 Phil. 522; Cordero vs. Judge of CFI of
Rizal, 40 Phil. 246).
2. Sec. 8, Rule 51 f u r t h e r provides t h a t "(n)o error

which does not affect t h e jurisdiction over t h e subject-
m a t t e r or t h e validity of t h e j u d g m e n t appealed from or
t h e proceedings t h e r e i n will be considered unless stated
in t h e a s s i g n m e n t of e r r o r s , or closely r e l a t e d to or
d e p e n d e n t on an assigned e r r o r a n d properly argued in
t h e brief, save as t h e court may p a s s upon plain errors
a n d clerical e r r o r s . "
3. Also, on appeal, t h e p a r t i e s c a n n o t change their

theory of action or defense since t h a t would be outside the
issues framed in t h e lower court (Atkins, Kroll & Co.,
Inc. vs. Chu Hian Tek, 102 Phil. 948), except when the
factual b a s e s thereof would not require t h e p r e s e n t a t i o n
of f u r t h e r evidence by t h e adverse p a r t y to enable it to
604
meet t h e issues raised in the new theory of the appellant

(Lianga Lumber Co. vs. Lianga Timber Co., Inc., L-38685,
Mar. 31, 1977).
The reversal of a j u d g m e n t on appeal is generally
binding only on the parties in the appealed case and does
not affect or inure to the benefit of those who did not join
or were not made parties to the appeal. However, where
a j u d g m e n t cannot be reversed as to the party appealing
w i t h o u t affecting t h e r i g h t s of t h e co-party who did
not appeal, or where the rights and liabilities of the parties
who did not a p p e a l a n d t h o s e who a p p e a l e d a r e s o
interwoven and dependent on each other as to be
inseparable, a reversal as to one operates as a reversal
as to all because of t h e c o m m u n i t y of t h e i r i n t e r e s t s
(Tropical Homes, Inc. vs. Fortun, et al., G.R. No. 51554,
Jan. 13, 1989).
4. In the appellate proceedings, the reversal of the

judgment on appeal is binding only on the parties in the
appealed case and does not affect or inure to the benefit
of those who did not join or were not made p a r t i e s to
the appeal (Facundo, vs. Pabalan, etc., et al., L-17746,
Jan. 31, 1962), except where the interest of those who
appealed and those who did not are so interwoven and
dependent on each other as to be inseparable such t h a t a
r e v e r s a l as to one o p e r a t e s as a r e v e r s a l as to all
(Municipality of Orion vs. Concha, 50 Phil. 679; Cayaba
vs. CA, et al., G.R. No. 95918, Mar. 5, 1993). Thus, where
the two r e s p o n d e n t s based t h e i r claim to t h e land as
co-heirs in pro indiviso shares in the same parcel of land
covered by the same title and neither respondent asserted
a claim adverse to the others; at the trial, the respondent
who did not a p p e a l did not p r e s e n t any evidence but
adopted the evidence presented by the other on their
communality of i n t e r e s t s as co-owners of t h e land in
litigation; and the appeal was from the entire judgment
involving said parcel of land and not merely from separate
and distinct portions thereof, the reversal of the judgment
605
as to t h e r e s p o n d e n t who a p p e a l e d is b i n d i n g on the
r e s p o n d e n t who did not, as t h e evidence of the former is
t h e s a m e as t h a t of t h e l a t t e r (Director of Lands, et al. vs.
Reyes, et al., L-27594, Feb. 27, 1976; Alinsunurin, etc. vs.
Director of Lands, et al, L-28144, Feb. 27, 1976).
5. It will be recalled t h a t w h e n several defendants

a r e sued u n d e r a common cause of action, an answer filed
by one of t h e m g e n e r a l l y i n u r e s to t h e benefit of t h e
d e f e n d a n t s who did not file t h e i r answer, and the case
shall be tried on t h e basis of such a n s w e r as may have
b e e n filed (Sec. 3[cJ, Rule 9). T h e r u l e , h o w e v e r , is
different w h e r e j u d g m e n t i s r e n d e r e d a g a i n s t several
co-parties since an a p p e a l therefrom by one of t h e parties
does not i n u r e to t h e benefit of his co-parties who did not
duly appeal, save in t h e s i t u a t i o n s in t h e cases j u s t noted
w h e r e i n a r e v e r s a l o b t a i n e d by one of t h e a p p e l l a n t s
benefits his co-parties who a r e similarly circumstanced.
If, d u r i n g t h e p e n d e n c y o f t h e a p p e a l , e x e c u t i o n a l
processes h a d been enforced against t h e losing parties who
did not a p p e a l , u p o n r e v e r s a l of t h e j u d g m e n t a quo,
r e s t i t u t i o n or r e p a r a t i o n shall be made, in accordance with
Sec. 5, Rule 39, in t h e cases t h u s contemplated.
6. The d e t e r m i n a t i o n by t h e t r i a l court is entitled to

t h e h i g h e s t r e s p e c t since t h e p r e s i d i n g judge was in a
b e t t e r position to weigh a n d a p p r a i s e t h e testimony of
t h e w i t n e s s e s , h a v i n g o b s e r v e d t h e i r d e p o r t m e n t and
m a n n e r of t e s t i f y i n g . A p p e l l a t e c o u r t s will generally
not d i s t u r b t h e factual findings of t h e t r i a l court unless it
h a s plainly overlooked facts of s u b s t a n c e and value w b ' h,
if considered, might affect t h e r e s u l t of t h e case (People
vs. Baao, G.R. No. 68574, July 7, 1986; People vs. Ibal,
G.R. Nos. 66010-12, July 31, 1986).
A s i m i l a r r u l e is followed w i t h r e g a r d to factual
f i n d i n g s of a d m i n i s t r a t i v e t r i b u n a l s or q u a s i - j u d i c i a l
agencies. With established exceptions, the Supreme
Court also accords respect, if not finality, to their factual
606
findings by reason of their special knowlege and expertise

gained from their experience in specific matters under their
jurisdiction (Manila Hotel Corp. vs. NLRC, et al., G.R.
No. 54353, Jan. 22, 1986; Ateneo de Manila vs. CA et al.,
G.R. No. 56180, Oct. 16, 1986; Phil. Overseas Drilling
and Oil Dev. Corp. vs. Minister of Labor, et al., G.R. No.
55703, Nov. 27, 1986; Soco vs. Mercantile Corp. of Davao,
et al, G.R. Nos. 53364-65, Mar. 16, 1987).
607
RULE 45
APPEAL BY CERTIORARI
TO THE SUPREME COURT
S e c t i o n 1. Filing of petition with Supreme Court. —

A p a r t y d e s i r i n g to a p p e a l by c e r t i o r a r i from a
j u d g m e n t , final o r d e r or resolution of t h e Court of
Tax Appeals, the Regional Trial Courts, or other
c o u r t s , w h e n e v e r a u t h o r i z e d b y l a w , m a y file w i t h
t h e S u p r e m e C o u r t a v e r i f i e d p e t i t i o n for r e v i e w o n
certiorari. The petition may include an application
for a w r i t of p r e l i m i n a r y i n j u n c t i o n or o t h e r
provisional r e m e d i e s a n d shall raise only questions
of law, w h i c h m u s t be distinctly set forth. The
petitioner may seek the same provisional remedies
by v e r i f i e d m o t i o n filed in t h e s a m e a c t i o n or
p r o c e e d i n g s at a n y time d u r i n g its pendency.
J
(As amended in A.M. No. 07-7-12-SC, effective
Dec. 27, 2007)
NOTES
1. Appeals to t h e S u p r e m e Court a r e made only by

verified p e t i t i o n s for review on certiorari, except only in
a p p e a l s from j u d g m e n t s of t h e Regional Trial Court in
c r i m i n a l c a s e s w h e r e i n t h e p e n a l t y i m p o s e d i s life
i m p r i s o n m e n t or reclusion perpetua w h i c h s h a l l be
elevated by ordinary appeal, or formerly, wherein the death
penalty was imposed a n d w a s subject to automatic review.
All o t h e r a p p e a l s to t h e S u p r e m e Court can be t a k e n
from a j u d g m e n t or final order or resolution of the Court
of Appeals, t h e S a n d i g a n b a y a n , t h e Regional Trial Court,
or such o t h e r c o u r t s as may be authorized by law, only by
a verified petition for review on certiorari on questions of
law.
608
RULE 45 A P P E A L BY CERTIORARI SEC. 1
2. The appeal u n d e r this Rule contemplates t h a t the

Regional Trial Court rendered the judgment or final order
or r e s o l u t i o n a c t i n g in its original j u r i s d i c t i o n . If it
rendered the same in the exercise of its appellate
jurisdiction, in t h e instances provided for in Rules 42 and
43, the appeal shall be t a k e n to the Court of Appeals even
if only questions of law are raised by the petitioner.
3. A question of law exists when there is a doubt or

controversy as to w h a t the law is on a certain s t a t e of
facts, and t h e r e is a question of fact when the doubt or
difference a r i s e s as to t h e t r u t h or falsehood of facts
(Ramos vs. Pepsi-Cola Bottling Co., L-22533, Feb. 9, 1967;
Pilar Dev. Corp. vs. IAC, et al., G.R. No. 72283, Dec. 12,
1986). One t e s t is w h e t h e r t h e a p p e l l a t e c o u r t can
determine the issue raised without reviewing or evaluating
t h e e v i d e n c e , in w h i c h case it is a q u e s t i o n of law;
otherwise, it will be a question of fact. The question must
not involve the examination of the probative value of the
e v i d e n c e p r e s e n t e d (Vda. de Arroyo vs. El Beaterio
del Santissimo Rosario de Molo, L-22005, May 3, 1968).
As distinguished from a question of law which exists
when the doubt or difference arises as to what the law is
on a certain state of facts, there is a question of fact when
t h e doubt or difference a r i s e s as to t h e t r u t h or t h e
falsehood of alleged facts, or when the query necessarily
invites calibration of t h e whole evidence considering
mainly the credibility of witnesses, existence and relevancy
of specific surrounding circumstances, their relation to each
o t h e r a n d to t h e whole, and t h e probabilities of t h e
situation (Bernardo, et al. vs. CA, et al., G.R. No. 101680,
Dec. 7, 1992, and cases cited therein).
4. Whether an appeal involves only questions of law
or both q u e s t i o n s of law a n d fact is b e s t left to t h e
determination of an appellate court and not by the court
which r e n d e r e d t h e decision appealed from (PNB vs.
Romillo, etc., et al., G.R. No. 70681, Oct. 16, 1985). When
609
t h e facts a r e u n d i s p u t e d , t h e question of w h e t h e r or not

t h e conclusion d r a w n therefrom by t h e Court of Appeals
is correct is a question of law cognizable by t h e Supreme
Court (Commissioner of Immigration vs. Garcia, L-28082,
June 28, 1974). However, all doubts as to t h e correctness
of s u c h conclusions will be resolved in favor of the Court
of Appeals (Pilar Dev. Corp. vs. IAC, et al., supra).
5. As a r u l e , t h e findings of fact of t h e Court of

Appeals a r e final a n d conclusive and cannot be reviewed
on a p p e a l to t h e S u p r e m e Court (Amigo, et al. vs. Teves,
96 Phil. 252) provided they a r e borne out by t h e record
or a r e b a s e d on s u b s t a n t i a l e v i d e n c e (Alsua-Betts vs.
CA, et al., L-46430-31, July 30, 1979). However, as
r e c a p i t u l a t e d by t h e S u p r e m e Court in Ramos, et al. vs.
Pepsi Cola Bottling Co., supra, a n d in its s u b s e q u e n t
r u l i n g s , findings of fact of t h e Court of Appeals may be
reviewed by t h e S u p r e m e C o u r t on a p p e a l by certiorari -
(a) W h e n t h e c o n c l u s i o n i s a f i n d i n g g r o u n d e d
entirely on speculations, s u r m i s e s or conjectures (Joaquin
vs. Navarro, 93 Phil. 257);
(b) W h e n t h e inference m a d e is manifestly mistaken,
a b s u r d or impossible (Luna vs. Linatok, 74 Phil. 15);
(c) W h e r e t h e r e is grave abuse of discretion in the
a p p r e c i a t i o n of facts (Buyco vs. People, 95 Phil. 453);
(d) W h e n t h e j u d g m e n t is b a s e d on a m i s a p p r e -
hension of facts (De la Cruz vs. Sosing, et al., 94 Phil.
26);
(e) W h e n t h e findings of fact of t h e Court of Appeals
a r e conflicting (Casica, et al. vs. Villaseca, et al., 101 Phil.
1204 [Unrep.]);
(f) W h e n t h e C o u r t o f A p p e a l s , i n m a k i n g i t s
findings, w e n t beyond t h e issues of t h e case and the same
is c o n t r a r y to the admissions of both appellant and
appellee (Evangelista vs. Alto Surety & Insurance Co., 103
610
Phil. 401; Roque vs. Buan, G.R. No. 22459, Oct. 31, 1967;
Leonardo vs. CA, et al., G.R. No. 51263, Feb. 28, 1983;
Republic vs. CA, et al., G.R. No. 61647, Oct. 12, 1984;
Moran vs. CA, et al, G.R. No. 59956, Oct. 13, 1984;Nakpil
& Sons, et al. vs. CA, et al, G.R. No. 47851, Oct. 3, 1986);
(g) W h e n t h e C o u r t of Appeals manifestly over-
looked certain relevant facts not disputed by t h e p a r t i e s
and which, if properly considered, would justify a different
conclusion (Abellana vs. Dosdos, LI9498, Feb. 26, 1965;
Uytiepo vs. Aggabao, L-28671, Sept. 30, 1970; Carolina
Industries, Inc. vs. CMS Stock Brokerage, Inc., L-46908,
May 17, 1980); or
(h) Where the findings of fact of the Court of Appeals
a r e c o n t r a r y to t h o s e of t h e t r i a l court, or a r e m e r e
conclusions without citation of specific evidence, or where
the facts set forth by the petitioner are not disputed by
the respondent, or where the findings of fact of the Court
of Appeals are premised on absence of evidence but are
contradicted by t h e evidence of record (Manero vs. CA,
et al, L-49542, Sept. 12, 1980; Ducusin vs. CA, et al,
G.R. No. 58286, May 16, 1983; Cesar vs. Sandiganbayan,
et al, G.R. Nos. 54719-50, Jan. 17, 1985; Sacay vs.
Sandiganbayan, et al, G.R. Nos. 66497-98, July 10,
1986; Manlapaz vs. CA, et al, G.R. No. 56589, Jan. 12,
1987).
6. Certiorari as a mode of appeal under this Rule,

should be distinguished from certiorari as an original
s p e c i a l civil a c t i o n (Rule 65), u n d e r t h e following
considerations:
a. In appeal by certiorari, the petition is based on
questions of law which the appellant desires the appellate
court to resolve. In certiorari as an original action, the
petition raises the issue as to whether the lower court acted
without or in excess of jurisdiction or with grave abuse of
discretion.
611
b. C e r t i o r a r i , as a m o d e of a p p e a l , involves the
review of t h e j u d g m e n t , a w a r d or final order on the merits.
The original action for certiorari may be directed against
an interlocutory order of t h e court prior to appeal from
t h e j u d g m e n t or w h e r e t h e r e is no appeal or any other
plain, speedy or a d e q u a t e remedy.
c. A p p e a l by c e r t i o r a r i m u s t be m a d e within the
r e g l e m e n t a r y period for a p p e a l . An original action for
c e r t i o r a r i may be filed not l a t e r t h a n sixty (60) days from
notice of t h e j u d g m e n t , order or resolution sought to be
assailed.
d. Appeal by c e r t i o r a r i s t a y s t h e judgment, award
or o r d e r a p p e a l e d from. An original action for certiorari,
u n l e s s a w r i t of p r e l i m i n a r y injunction or a temporary
r e s t r a i n i n g o r d e r shall have been issued, does not stay
t h e challenged proceeding.
e. In a p p e a l by c e r t i o r a r i , the petitioner and
r e s p o n d e n t a r e t h e original p a r t i e s to t h e action, and the
lower court or quasi-judicial agency is not to be impleaded.
I n c e r t i o r a r i a s a n o r i g i n a l action, t h e p a r t i e s are the
aggrieved p a r t y a g a i n s t t h e lower court or quasi-judicial
agency and t h e p r e v a i l i n g p a r t i e s , who thereby
respectively become t h e p e t i t i o n e r and respondents.
f. In certiorari for p u r p o s e s of appeal, the prior filing
of a motion for r e c o n s i d e r a t i o n is not required; while in
certiorari as an original action, a motion for reconsideration
is a condition p r e c e d e n t , subject to certain exceptions.
g. In a p p e a l by certiorari, t h e appellate court is in
t h e exercise of i t s a p p e l l a t e j u r i s d i c t i o n and power of
review, while in c e r t i o r a r i as an original action, the higher
c o u r t exercises o r i g i n a l j u r i s d i c t i o n u n d e r its power of
c o n t r o l a n d s u p e r v i s i o n over t h e proceedings of lower
courts.
The foregoing distinctions set out in this book were
first a d o p t e d by t h e S u p r e m e Court in Paa vs. CA, et al.
612
R U L E 45 A P P E A L BY CERTIORARI SEC. 2
(G.R. No. 12560, Dec. 4, 1997); see also San Miguel Corp.,
et al. vs. Layos, Jr., et al, (G.R. No. 149640, Oct. 19, 2007).
7. The S u p r e m e Court can t r e a t a p e t i t i o n filed
erroneously under Rule 65 as one filed under Rule 45 if
the petitioner had alleged grave abuse of discretion in said
petition under the following circumtances: (1) If the petition
was filed within 15 days of notice of the judgment or final
order or resolution appealed from; or (2) If the petition is
meritorious (Hanjin Heavy Industries and Construction
Co., Ltd. vs. CA, et al, G.R. No. 167938, Feb. 19, 2009).
Sec. 2. Time for filing; extension. — T h e p e t i t i o n

s h a l l b e filed w i t h i n fifteen (15) d a y s f r o m n o t i c e o f
t h e j u d g m e n t o r final o r d e r o r resolution a p p e a l e d
f r o m , o r o f t h e d e n i a l o f t h e p e t i t i o n e r ' s m o t i o n for
n e w t r i a l o r r e c o n s i d e r a t i o n filed i n d u e t i m e a f t e r
n o t i c e o f t h e j u d g m e n t . O n m o t i o n d u l y filed a n d
s e r v e d , w i t h full p a y m e n t o f t h e d o c k e t a n d o t h e r
l a w f u l f e e s a n d t h e d e p o s i t for c o s t s b e f o r e t h e
expiration of the reglementary period, the Supreme
C o u r t m a y for j u s t i f i a b l e r e a s o n s g r a n t a n
e x t e n s i o n o f t h i r t y (30) d a y s o n l y w i t h i n w h i c h t o
file t h e p e t i t i o n , ( l a , 5a)
NOTE
1. The reglementary period to appeal is 15 days from

s e r v i c e of t h e j u d g m e n t , final o r d e r or r e s o l u t i o n .
However, within t h a t period, the aggrieved party may file
a motion for new trial or reconsideration and, if denied,
he shall have the entire 15 days all over again from notice
of such denial within which to file his petition for review
on certiorari in the Supreme Court.
In either case, within such 15-day period, he may for
good cause file a motion with the Supreme Court for
extension of time within which to file his petition for review
on certiorari, but he must within t h a t period submit the
613
RULE 45 R E M E D I A L LAW C O M P E N D I U M 8EC. 3
requisite proof of service of such motion on the respondents,

pay t h e docket a n d o t h e r lawful fees in full, as well as
deposit t h e costs of suit.
It will be noted t h a t this is a special procedure adopted
in t h e i n t e r e s t of p r o c e d u r a l due process a n d to afford
sufficient o p p o r t u n i t y to t h e appealing p a r t y to file his
petition for review on certiorari which may very well be
his l a s t chance for obtaining full appellate review of his
case. The basic r u l e is t h a t since t h e subject of motions
a r e only t h e i n c i d e n t s in a case, t h e r e m u s t first be a
p e n d i n g case in t h e court w h e r e i n a motion on an incident
t h e r e i n may be e n t e r t a i n e d . H e r e , however, although no
such m a i n case is p e n d i n g in t h e S u p r e m e Court since a
petition therefor is still to be filed, t h e appealing party
may file, a n d t h e S u p r e m e Court will e n t e r t a i n , such a
motion for extension of t i m e .
S e c . 3. Docket and other lawful fees; proof of service

of petition. — U n l e s s he h a s t h e r e t o f o r e d o n e s o , t h e
p e t i t i o n e r shall pay t h e c o r r e s p o n d i n g d o c k e t and
other lawful fees to the clerk of court of the
S u p r e m e C o u r t a n d d e p o s i t t h e a m o u n t o f P500.00
for c o s t s a t t h e t i m e o f t h e f i l i n g o f t h e p e t i t i o n .
Proof of service of a copy thereof on the lower court
concerned and on the adverse party shall be
submitted together with the petition, (la)
NOTES
1. The opening p h r a s e "(u)nless he h a s theretofore

done so" refers to t h e situation in the next preceding section
w h e r e i n a motion for extension of time to file t h e petition
for review w a s filed, in which case t h e p e t i t i o n e r had
a l r e a d y paid t h e docket a n d o t h e r lawful fees a n d made
t h e deposit for costs as requisites therefor.
2. P r o o f of s e r v i c e of c o p i e s on t h e l o w e r c o u r t
concerned, as t h e public respondent, a n d on t h e adverse
614
party, as the private respondent, in the m a n n e r provided

by Rule 13 shall be submitted together with the petition;
otherwise, the same shall be dismissed outright as was
the practice adopted by the Supreme Court p u r s u a n t to
revised Circular No. 1-88 and from which the p r e s e n t
r e q u i r e m e n t s were taken. However, although a copy of
the petition is served on the lower court concerned, it is
only for the purpose of giving notice t h a t its j u d g m e n t
should not be entered since it is not yet executory because
of the pending petition for review thereof. The lower
court does not, however, become a party to the case since
Rule 45 provides a mode of appeal, as explained in the
following section.
Sec. 4. Contents of petition. — T h e p e t i t i o n s h a l l

b e filed i n e i g h t e e n (18) c o p i e s , w i t h t h e o r i g i n a l
c o p y i n t e n d e d for t h e c o u r t b e i n g i n d i c a t e d a s s u c h
b y t h e p e t i t i o n e r , a n d s h a l l (a) s t a t e t h e full n a m e
of the appealing party as the petitioner and the
adverse party as respondent, without impleading
the lower courts or judges thereof either as
p e t i t i o n e r s o r r e s p o n d e n t s ; (b) i n d i c a t e t h e m a t e r i a l
d a t e s s h o w i n g w h e n n o t i c e o f t h e j u d g m e n t o r final
order or resolution subject thereof was received,
w h e n a m o t i o n for n e w t r i a l o r r e c o n s i d e r a t i o n , i f
a n y , w a s filed a n d w h e n n o t i c e o f t h e d e n i a l t h e r e o f
w a s r e c e i v e d ; (c) s e t f o r t h c o n c i s e l y a s t a t e m e n t of
the m a t t e r s involved, and the reasons or a r g u m e n t s
r e l i e d o n for t h e a l l o w a n c e o f t h e p e t i t i o n ; (d) b e
a c c o m p a n i e d by a clearly legible d u p l i c a t e original,
or a certified t r u e copy of t h e j u d g m e n t or final
o r d e r or resolution certified by the clerk of court
o f t h e c o u r t a quo a n d t h e r e q u i s i t e n u m b e r o f p l a i n
copies thereof, a n d such material portions of the
record as would support the petition; and
(e) c o n t a i n a s w o r n c e r t i f i c a t i o n a g a i n s t f o r u m
s h o p p i n g as provided in the last p a r a g r a p h of
s e c t i o n 2, R u l e 42. (2a)
615
NOTES
1. The contents of t h e petition required in this section

have also t a k e n into account and included the provisions
of revised Circulars Nos. 1-88 and 28-91 of t h e Supreme
Court.
2. It is specifically stated t h a t t h e petition shall state

t h e full n a m e s of the parties, "without impleading the lower
courts or j u d g e s thereof." This r e s u s c i t a t e s t h e former
holding of the S u p r e m e Court t h a t in an appeal by
c e r t i o r a r i u n d e r t h i s Rule, t h e court or t h e judge who
r e n d e r e d t h e decision appealed from is not required to be
joined as a p a r t y r e s p o n d e n t . The only p a r t i e s thereto
should be t h e a p p e l l a n t , as petitioner, a n d t h e appellee,
as r e s p o n d e n t . It is in t h e special civil action of certiorari
u n d e r Rule 65 w h e r e t h e court or j u d g e is required to
be joined as a p a r t y r e s p o n d e n t (Metropolitan Waterworks
& Sewerage System vs. CA, et al., G.R. No. 54526,
Aug. 26, 1986; Phil. Global Communications, Inc. vs.
Relova, etc., et al, G.R. No. 60548, Nov. 10, 1986).
S e c . 5. Dismissal or denial of petition. — T h e

failure of the petitioner to comply with any of the
foregoing requirements regarding the payment of
t h e d o c k e t a n d o t h e r l a w f u l f e e s , d e p o s i t for c o s t s ,
proof of service of the petition, and the contents of
and the documents which should accompany the
p e t i t i o n s h a l l b e s u f f i c i e n t g r o u n d for t h e d i s m i s s a l
thereof.
T h e S u p r e m e Court may on its own initiative
deny the petition on the ground that the appeal
i s w i t h o u t m e r i t , o r i s p r o s e c u t e d m a n i f e s t l y for
delay, or t h a t t h e q u e s t i o n s raised t h e r e i n a r e too
u n s u b s t a n t i a l t o r e q u i r e c o n s i d e r a t i o n . (3a)
S e c . 6. Review discretionary. — A r e v i e w is n o t a
matter of right, but of sound judicial discretion,
616
RULE 45 A P P E A L BY CERTIORARI S E C S . 7-8
a n d will b e g r a n t e d only w h e n t h e r e a r e special a n d

i m p o r t a n t r e a s o n s therefor. T h e following, while
n e i t h e r c o n t r o l l i n g n o r fully m e a s u r i n g t h e c o u r t ' s
discretion, indicate the character of the reasons
w h i c h will be c o n s i d e r e d :
(a) W h e n t h e c o u r t a quo h a s d e c i d e d a
question of substance, not theretofore determined
by t h e S u p r e m e Court, or has decided it in a way
probably not in accord with law or with t h e
applicable decisions of the Supreme Court; or
(b) W h e n t h e c o u r t a quo h a s s o far d e p a r t e d
from the accepted and usual course of judicial
p r o c e e d i n g s , or so far s a n c t i o n e d s u c h d e p a r t u r e
b y a l o w e r c o u r t , a s t o c a l l for a n e x e r c i s e o f t h e
p o w e r o f s u p e r v i s i o n . (4a)
Sec. 7. Pleadings and documents that may be

required; sanctions. — F o r p u r p o s e s of d e t e r m i n i n g
whether the petition should be dismissed or denied
p u r s u a n t to section 5 of this Rule, or w h e r e the
p e t i t i o n i s g i v e n d u e c o u r s e u n d e r s e c t i o n 8 hereof,
t h e S u p r e m e C o u r t m a y r e q u i r e o r a l l o w t h e filing
of such pleadings, briefs, m e m o r a n d a or docu-
ments as it may deem necessary within such periods
and under such conditions as it may consider
appropriate, and impose the corresponding
sanctions in case of non-filing or u n a u t h o r i z e d
filing of s u c h p l e a d i n g s a n d d o c u m e n t s or non-
c o m p l i a n c e w i t h t h e c o n d i t i o n s t h e r e f o r , (n)
Sec. 8. Due course; elevation of records. — If t h e

petition is given d u e course, the S u p r e m e Court may
require the elevation of the complete record of the
c a s e o r s p e c i f i e d p a r t s t h e r e o f w i t h i n fifteen (15)
d a y s f r o m n o t i c e . (2a)
617
NOTES
1. The first p a r a g r a p h of Sec. 5, as has already been

observed in connection with the o t h e r petitions filed in
t h e a p p e l l a t e courts, adopted t h e provisions of revised
C i r c u l a r No. 1-88 a n d r e l a t e d c i r c u l a r s issued by the
S u p r e m e Court.
The second p a r a g r a p h is related to and is a conse-
quence of t h e provisions of Sec. 6 which underscores the
fact t h a t a p p e l l a t e review u n d e r this Rule is discretionary
a n d c a n b e g r a n t e d only w h e n t h e r e a r e special and
i m p o r t a n t r e a s o n s therefor.
2 . P u r s u a n t t o S e c . 7 , t h e S u p r e m e C o u r t may
r e q u i r e t h e filing of a c o m m e n t , reply, rejoinder a n d
s u r r e j o i n d e r w h e n necessary, as well as briefs, memo-
r a n d a or such o t h e r d o c u m e n t s as it may deem necessary
for a full discussion and consideration of t h e issues on
a p p e a l . See, however, t h e resolution of the Court in A.M.
No. 99-2-04-SC (Appendix R) limiting t h e pleadings t h a t
m a y be filed a f t e r t h e reply, a n d t h e p r o c e d u r e to be
followed t h e r e a f t e r .
S e c . 9. Rule applicable to both civil and criminal

cases. — T h e m o d e o f a p p e a l p r e s c r i b e d i n t h i s
R u l e s h a l l b e a p p l i c a b l e t o b o t h civil a n d c r i m i n a l
cases, except in criminal cases where the penalty
i m p o s e d i s d e a t h , reclusion perpetua o r l i f e i m -
p r i s o n m e n t , (n)
NOTE
1. See Note 1 u n d e r Sec. 1 of t h i s Rule, and Note 11

u n d e r Secs. 1 to 3, Rule 122.
618
RULE 46
ORIGINAL C A S E S
S e c t i o n 1. Title of cases. — In all c a s e s o r i g i n a l l y

filed i n t h e Court o f A p p e a l s , t h e party i n s t i t u t i n g
the action shall be called the petitioner and the
o p p o s i n g party t h e r e s p o n d e n t , ( l a )
Sec. 2. To what actions applicable. — T h i s R u l e

s h a l l a p p l y t o o r i g i n a l a c t i o n s for c e r t i o r a r i ,
prohibition, mandamus and quo warranto.
Except as otherwise provided, the actions
for a n n u l m e n t o f j u d g m e n t - s h a l l b e g o v e r n e d b y
Rule 47, for c e r t i o r a r i , p r o h i b i t i o n a n d m a n d a m u s
by R u l e 65, a n d for q u o w a r r a n t o by Rule 66. (n)
NOTES
1. This rule formerly governed the cases which were

within the original jurisdiction of the Court of Appeals,
i.e., p e t i t i o n s for m a n d a m u s , prohibition, injunction,
certiorari, habeas corpus and other writs and processes in
aid of its appellate jurisdiction (Sec. 30, R.A. 296).
2. Under B.P. Blg. 129, the Intermediate Appellate
Court (now, the Court of Appeals) has original jurisdic-
tion to issue writs of mandamus, prohibition, certiorari,
habeas corpus and quo warranto, and auxiliary writs or
processes, whether or not they are in aid of its appellate
jurisdiction; and it has exclusive original jurisdiction over
actions for a n n u l m e n t of j u d g m e n t s of Regional Trial
Courts (Sec. 9; cf. Pars. 14 and 15, Interim or Transitional
Rules and Guidelines).
Petitions for habeas corpus have been excluded from
the coverage of the present revised Rule since they are
a c t u a l l y special p r o c e e d i n g s and t h e c o r r e s p o n d i n g
619
procedural rules governing t h e same are provided for in

t h e Rules on special proceedings and in Sec. 3, Rule 41.
S e c . 3. Contents and filing of petition; effect of non-

compliance with requirements. — T h e p e t i t i o n s h a l l
c o n t a i n t h e full n a m e s a n d a c t u a l a d d r e s s e s o f all
the petitioners and respondents, a concise
s t a t e m e n t of the matters involved, the factual
background of the case, and the grounds relied upon
for t h e r e l i e f p r a y e d for.
I n a c t i o n s f i l e d u n d e r R u l e 65, t h e p e t i t i o n
shall further indicate the material dates showing
w h e n n o t i c e of the j u d g m e n t or final order or
resolution subject thereof was received, when a
m o t i o n for n e w t r i a l o r r e c o n s i d e r a t i o n , i f a n y , w a s
filed and w h e n notice of the denial thereof was
received.
I t s h a l l b e f i l e d i n s e v e n (7) c l e a r l y l e g i b l e
c o p i e s t o g e t h e r w i t h proof of service thereof on the
r e s p o n d e n t w i t h t h e o r i g i n a l c o p y i n t e n d e d for t h e
c o u r t i n d i c a t e d as s u c h by the petitioner, and shall
be a c c o m p a n i e d by a clearly legible duplicate
o r i g i n a l o r c e r t i f i e d t r u e c o p y o f t h e j u d g m e n t , order,
r e s o l u t i o n , or r u l i n g subject thereof, s u c h material
p o r t i o n of t h e record as are referred to therein, and
other documents relevant or pertinent thereto.
The certification shall be accomplished by the
proper clerk of court or by his duly authorized
r e p r e s e n t a t i v e , or by the proper officer of the
court, t r i b u n a l , a g e n c y or office involved or by
his duly authorized representative. The other
requisite number of copies of the petition
shall be accompanied by clearly legible plain
c o p i e s o f all d o c u m e n t s a t t a c h e d t o t h e o r i g i n a l .
The petitioner shall also submit together with
t h e p e t i t i o n a s w o r n c e r t i f i c a t i o n t h a t h e h a s not
620
RULE 46 ORIGINAL CASES SEC. 3
theretofore commenced any other action involving

the same issues in the Supreme Court, the Court of
Appeals or different divisions thereof, or a n y o t h e r
tribunal or agency; if there is such other action or
proceeding, he must state the status of the same;
and if he should thereafter learn t h a t a similar
a c t i o n o r p r o c e e d i n g h a s b e e n filed o r i s p e n d i n g
before t h e S u p r e m e Court, the Court of Appeals, or
different divisions thereof, or any o t h e r t r i b u n a l or
agency, he undertakes to promptly inform the
aforesaid courts and other tribunal or agency
t h e r e o f w i t h i n five (5) d a y s t h e r e f r o m .
The petitioner shall pay the corresponding
d o c k e t a n d o t h e r l a w f u l fees t o t h e C l e r k o f C o u r t
a n d d e p o s i t t h e a m o u n t o f P500.00 for c o s t s a t t h e
t i m e of t h e filing of t h e petition.
The failure of the petitioner to comply with any
of the foregoing r e q u i r e m e n t s shall be sufficient
g r o u n d for t h e d i s m i s s a l o f t h e p e t i t i o n , (n)
(As amended by Resolution of the Supreme Court, dated
July 21, 1998)
NOTES
1. J u s t like t h e other petitions filed in appellate

proceedings, the requirements for original actions in the
a p p e l l a t e c o u r t s w e r e t a k e n from revised C i r c u l a r s
Nos. 1-88 and 28-91, as well as Circular No. 19-91 of the
Supreme Court. It will again be observed that the original
copy of the petition intended for the court shall be marked
or indicated as such, since, among others, it m u s t be
accompanied by a clearly legible duplicate original or
certified true copy of the adjudicatory issuance complained
of whereas the other copies may be accompanied by only
plain copies thereof. If the original copy of the petition
intended for the court is accompanied by only plain copies
of said documents, the same may be dismissed outright.
621
2. However, in Balagtas Multi-Purpose Cooperative,

Inc., et al. vs. CA, et al. (G.R. 138520, Sept. 16, 1999)',
w h e r e t h e C o u r t of A p p e a l s d i s m i s s e d a p e t i t i o n for
c e r t i o r a r i for non-compliance w i t h t h e r e q u i r e m e n t of
Sec. 3, Rule 46, t h e S u p r e m e Court set aside t h a t
d i s m i s s a l . I t p o i n t e d o u t t h a t t h e i s s u e before said
c o u r t w a s w h e t h e r t h e p e t i t i o n e r w a s e x e m p t from
posting bond, hence its failure to s u b m i t the complaint
and o t h e r documents mentioned t h e r e i n were not material
or r e l e v a n t t h e r e t o . Its financial s t a t e m e n t was material
to t h e issue of its exemption from posting bond but the
s a m e w a s s u b s e q u e n t l y filed t o g e t h e r w i t h a motion for
r e c o n s i d e r a t i o n . This w a s s u b s t a n t i a l compliance with
Sec. 3, Rule 46 which should not be applied in a rigid
technical sense in t h e i n t e r e s t of s u b s t a n t i a l justice.
a. In Paras, et al. vs. Baldado etc., et al. (G.R.
No. 140317, Mar. 8, 2001), t h e S u p r e m e Court also set
aside t h e resolution of t h e Court of Appeals which
d i s m i s s e d a p e t i t i o n for c e r t i o r a r i w h e r e t h e copies of
t h e challenged o r d e r s a t t a c h e d t h e r e t o were not certified
by t h e clerk of court b u t only by a n o t a r y public. The
S u p r e m e C o u r t noted t h a t duplicate original copies of the
i m p u g n e d o r d e r s were a t t a c h e d to one copy of t h e petition,
a n d p e t i t i o n e r s s u b s e q u e n t l y s u b m i t t e d duly certified
c o p i e s t h e r e o f i n t h e i r m o t i o n for r e c o n s i d e r a t i o n .
It accordingly held t h a t t h e r e was s u b s t a n t i a l compliance
w i t h t h e r u l e s w h i c h , a f t e r all, a r e i n t h e n a t u r e o f
tools for t h e a t t a i n m e n t of justice which would be denied
by u n d u e r e s o r t to technicalities.
b. In Molina et al. vs. CA, et al. (G.R. No. 143156,
J a n . 13, 2003), t h e S u p r e m e C o u r t s u s t a i n e d t h e
sufficiency of a c e r t i o r a r i petition even if the copies of the
a t t a c h e d o r d e r failed to show t h e a u t h o r i t y of t h e person
who certified t h e s a m e , and t h e seal of the court thereon
could not be identified. It explained t h a t the petitioners
did not have a h a n d in t h e p r e p a r a t i o n of said documents;
they only relied on t h e a u t h o r i t y of t h e court personnel
622
and the presumption of regularity in their performance of

official duty. It also declared t h a t the failure of petitioners
to a t t a c h some relevant documents which do not touch on
public policy nor deprive the court of its a u t h o r i t y or
adversely affect respondents may be disregarded as, in
fact, the Supreme Court has repeatedly permitted such
lacking documents to be submitted to cure the defect.
c. In OSM Shipping Philippines, Inc. vs. NLRC,
et al. (G.R. No. 138193, Mar. 5, 2003), it was pointed out
t h a t Sec. 3, Rule 46 does not require t h a t all supporting
p a p e r s and documents accompanying a petition be
duplicate originals or certified true copies. Even under
Rule 65, petitions are required to be accompanied only by
duplicate originals or certified true copies of the questioned
judgment, order or resolution. Other relevant documents
a n d p l e a d i n g s a t t a c h e d to it may be m e r e m a c h i n e
copies thereof.
d. In NYK International Knitwear Corporation
Philippines, et al. vs. NLRC, et al. (G.R. No. 146267,
Feb. 17, 2003), the Supreme Court was constrained to
explain t h e m e a n i n g of a "certified t r u e copy" of t h e
judgment, order or resolution required to be attached to
the petitions under discussion. Adverting to its
Administrative Circular No. 3-96 which was the precursor
of the present revised rules of civil procedure, it declared
t h a t t h e certified t r u e copy shall be such o t h e r copy
furnished to a party at his instance or in his behalf, by
the authorized officers or representatives of the issuing
entity. That certified true copy must comply with all the
regulations therefor of the issuing entity and it is the
authenticated original of such certified true copy, and not
a mere xerox copy thereof, which shall be attached as an
annex to the petition or other initiatory pleading.
3. The lack of certification against forum shopping

is generally not curable by the submission thereof after
the filing of a petition. In exceptional circumstances,
623
however, such as t h e filing of t h e certification a day after

but within t h e r e g l e m e n t a r y period for filing such petition,
the belated filing w a s allowed as a s u b s t a n t i a l compliance.
While t h e filing of t h e certification is mandatory, still the
r e q u i r e m e n t m u s t not be i n t e r p r e t e d too literally (Ship-
side, Inc. vs. CA, et al., G.R. No. 143377, Feb. 20, 2001).
4 . W h e r e t h e r e a l p a r t y i n i n t e r e s t i s a body
corporate, j u s t like in o t h e r pleadings earlier discussed,
an officer of t h e corporation can sign t h e certificate against
forum s h o p p i n g , b u t he m u s t be duly a u t h o r i z e d by a
resolution of t h e board of directors (Eslaban, Jr., etc. vs.
Vda. de Onorio, G.R. No. 146062, June 28, 2001).
5. The deposit for costs is required to be made upon

t h e filing of t h e complaint, unlike t h e p r e s e n t practice
w h e r e i n costs a r e r e q u i r e d upon notice after t h e petition
is given due course.
S e c . 4. Jurisdiction over person of respondent, how

acquired. — The court shall acquire jurisdiction
over t h e person of t h e r e s p o n d e n t by the service on
h i m of its o r d e r or resolution indicating its initial
action on the petition or by his voluntary
s u b m i s s i o n t o s u c h j u r i s d i c t i o n , (n)
S e c . 5. Action by the court. — T h e c o u r t m a y

d i s m i s s t h e p e t i t i o n o u t r i g h t w i t h specific r e a s o n s
for s u c h d i s m i s s a l o r r e q u i r e t h e r e s p o n d e n t t o file
a c o m m e n t o n t h e s a m e w i t h i n t e n (10) d a y s f r o m
notice. Only pleadings r e q u i r e d by the court shall
b e a l l o w e d . All o t h e r p l e a d i n g s a n d p a p e r s m a y b e
filed o n l y w i t h l e a v e of c o u r t , (n)
NOTES
1. T h e s e new sections of t h i s revised Rule have been

d i c t a t e d by t h e c h a n g e of procedure. The court, of course,
624
acquires jurisdiction over the petitioner by his filing of

the petition but, while a copy thereof is required to be
served on the respondent prior to or simultaneously w i t h
the filing of the petition with the court, it is only upon the
service on the l a t t e r of the order or resolution indicating
the court's initial action on the petition t h a t jurisdiction
over the r e s p o n d e n t is obtained, unless he voluntarily
submits to the court's jurisdiction.
The reason for this is that, aside from the fact t h a t no
s u m m o n s or o t h e r coercive process is s e r v e d on t h e
respondent, his response to the petition will depend on
the initial action of the court thereon. Under Sec. 5, the
court may dismiss the petition outright, hence no reaction
is expected from the respondent and, under the policy
adopted in t h i s Rule, he is not deemed to have been
brought within the court's jurisdiction until after service
on him of the dismissal order or resolution.
Should the petition appear to have complied with the
requirements in the next preceding section and the court
considers the issue raised worthy of judicial consideration,
it will require only a comment initially and any other
pleading filed by the parties without leave of court will
not be allowed. Such unauthorized pleadings may either
be noted without action or expunged from the record.
S e c . 6. Determination of factual issues. — W h e n -

ever necessary to resolve factual issues, the court
itself m a y conduct hearings thereon or delegate the
reception of the evidence on such issues to any of
its m e m b e r s or to an appropriate court, a g e n c y or
office, (n)
NOTES
1. For t h e resolution of factual issues raised in

original petitions, the Court of Appeals is granted the
options provided by this section.
625
In t h e S u p r e m e Court, w h e r e i n factual issues are

generally not involved since it is not a t r i e r of facts, this
section is not of equivalent significance. However, there
may be instances w h e r e i n an appeal t a k e n to the Supreme
Court ostensibly on questions of law may actually involve
t h e prior resolution of factual issues, in which case the
S u p r e m e Court may dispose of such improper appeal in
accordance w i t h t h e provisions of Sec. 6, Rule 56.
2. T h e r e a r e also i n s t a n c e s w h e r e t h e factual issue

raised in a direct a p p e a l to t h e S u p r e m e Court may not
involve a complicated situation nor entail the introduction
of evidence for its clarification. In such cases, t h e parties
may be r e q u i r e d to s u b m i t t h e corresponding pleadings
w i t h t h e ramification desired by t h e Court or t h e case may
be scheduled for limited oral a r g u m e n t before t h e Court
en banc or in division on specified issues.
S e c . 7. Effect of failure to file comment. — W h e n

n o c o m m e n t i s filed b y a n y o f t h e r e s p o n d e n t s , t h e
case may be decided on the basis of the record,
without prejudice to any disciplinary action which
t h e c o u r t m a y t a k e a g a i n s t t h e d i s o b e d i e n t party,
(n)
NOTE
1. The failure of t h e r e s p o n d e n t to file t h e required

c o m m e n t does not r e s u l t in a sanction similar to defaults
in t h e t r i a l courts since t h e appellate court may j u s t decide
t h e case on t h e basis of t h e record before it, specifically
t h e petition a n d its a t t a c h m e n t s b u t sans t h e comment or
any r e p r e s e n t a t i o n in behalf of t h e r e s p o n d e n t .
On t h e o t h e r h a n d , w h e r e t h e court believes, either

in t h e i n t e r e s t of s u b s t a n t i a l justice, or t h a t t h e case could
be justly resolved only w i t h revelatory d a t a which may be
obtained from t h e respondent, or t h a t his counsel is not
626
acting with due diligence or competence in protecting t h e

respondent's interest, it may require the submission of
s u c h c o m m e n t u n d e r p a i n o f s a n c t i o n s for i n d i r e c t
contempt.
627
RULE 47
A N N U L M E N T OF J U D G M E N T S OR
FINAL ORDERS AND RESOLUTIONS
S e c t i o n 1. Coverage. — T h i s R u l e s h a l l g o v e r n
the a n n u l m e n t by the Court of Appeals of judgments
or final orders and r e s o l u t i o n s in civil actions of
R e g i o n a l T r i a l C o u r t s for w h i c h t h e o r d i n a r y
r e m e d i e s o f n e w t r i a l , a p p e a l , p e t i t i o n for r e l i e f o r
other appropriate r e m e d i e s are no longer available
t h r o u g h n o f a u l t o f t h e p e t i t i o n e r , (n)
NOTES
1. A n n u l m e n t of a j u d g m e n t is a r e m e d y in law
i n d e p e n d e n t of t h e case w h e r e t h e j u d g m e n t sought to be
a n n u l l e d w a s r e n d e r e d . The j u d g m e n t may be annulled
on t h e ground of extrinsic or collateral fraud. A person
w h o i s n o t a p a r t y t o t h e j u d g m e n t m a y s u e for its
a n n u l m e n t provided he can prove t h a t the same was
obtained t h r o u g h fraud or collusion a n d t h a t he would be
adversely affected t h e r e b y . An action for a n n u l m e n t of
j u d g m e n t may be availed of even if t h e j u d g m e n t to be
a n n u l l e d h a d a l r e a d y been fully executed or implemented
(Islamic Da'Wah Council of the Phil. vs. CA, et al., G.R.
No. 80892, Sept. 29, 1989).
I t s h o u l d also b e o b s e r v e d t h a t , a s h a s b e e n t h e
accepted doctrine and now expressly s t a t e d in Sec. 2 of
this Rule, lack of jurisdiction is the second ground
a u t h o r i z e d for a n n u l m e n t of j u d g m e n t s or final orders and
resolutions.
2. Although t h i s is a new Rule, actually t h e annul-

m e n t of j u d g m e n t s is a r e m e d y long a u t h o r i z e d a n d
sanctioned in our jurisdiction. See t h e discussion in Note
8 u n d e r Sec. 1, Rule 39 on t h e j u r i s p r u d e n t i a l doctrines
628
RULE 47 A N N U L M E N T OF J U D G M E N T S OR SEC. 2
heretofore laid down regarding this remedy, and which

have been considered for purposes of the present Rule,
with modifications. See also Sec. 19(2), B.P. Blg. 129
which is the jurisdictional basis for this Rule.
3. One important condition for the availment of this

remedy is t h a t the petitioner failed to move for new trial
in, or appeal from, or file a petition for relief against, or
take other appropriate remedies assailing the questioned
j u d g m e n t or final order or resolution t h r o u g h no fault
attributable to him. If he failed to avail of those other
remedies without sufficient justification, he cannot resort
t o t h e a c t i o n for a n n u l m e n t p r o v i d e d i n t h i s R u l e ,
o t h e r w i s e he would benefit from his own inaction or
negligence.
Sec. 2. Grounds for annulment. — T h e a n n u l m e n t

may be based only on the grounds of extrinsic fraud
and lack of jurisdiction.
E x t r i n s i c fraud shall not be a valid g r o u n d if it
w a s a v a i l e d of, or c o u l d h a v e b e e n a v a i l e d of, in a
m o t i o n for n e w t r i a l o r p e t i t i o n for relief, (n)
NOTES
1. Refer to the discussion in Note 8 under Sec. 1,

Rule 37 on the concept of extrinsic, as distinguished from
intrinsic, fraud. Intrinsic fraud, which is found in the
cause of action or the m a t t e r put in issue and presented
for a d j u d i c a t i o n , is not a g r o u n d for a n n u l m e n t of
judgment, even if the correctness of such judgment has
b e e n affected by t h e m i s t a k e n r e l i a n c e on t h e fact
c o n s t i t u t i n g an intrinsic fraud, since t h e m a t t e r was
brought to the attention of the court and the parties, and
could h a v e b e e n t h e subject of t h e i r c o r r e s p o n d i n g
s u b m i s s i o n s , objections or e v a l u a t i o n . Extrinsic or
collateral fraud, on the other hand, was not revealed to
629
or was even deliberately suppressed from the opposing

p a r t y a n d t h e court, hence relief u n d e r t h i s Rule is
available subject to certain conditions.
2. The other ground for a n n u l m e n t of judgments or
final orders and resolutions is lack of jurisdiction on the
p a r t of the court which adjudicated the case. This refers
to e i t h e r lack of j u r i s d i c t i o n over t h e p e r s o n of t h e
defending party or over the subject-matter of the claim,
since in e i t h e r case t h e j u d g m e n t or final o r d e r and
resolution are void. See Sec. 1(a) and (b), Rule 16 and
Notes 7 to 9 t h e r e u n d e r .
3. T h e second p a r a g r a p h of t h i s section p u t s a
condition upon t h e invocation of extrinsic fraud as a
ground for the a n n u l m e n t sought. Indeed, if such ground
had really been availed of by the p a r t y in a motion for
new trial or petition for relief in the original court and
was rejected w i t h finality, he should not be permitted
a n o t h e r c h a n c e on t h e s a m e g r o u n d which h a d been
concluded by the adjudication of the case thereon. If, on
the other hand, he did not avail himself thereof, then he
must suffer t h e consequences of his implied waiver.
4. The defining role of this section was illustrated in
Ancheta vs. Ancheta (G.R. No. 145370, Mar. 4, 2004), a
saga of legal errors involving estranged spouses as the
p a r t i e s . The t h e r e i n respondent husband had filed an
action in the trial court for the annulment of their marriage
due to psychological incapacity of his wife; he deliberately
alleged in the complaint a wrong residential address for
the defendant wife; the sheriff served the summons on
the wrong person t h r o u g h a wrong mode of substituted
service; for failure to answer, the wife was declared in
default; the public prosecutor assigned to the case did not
raise any objection to the proceedings; and the trial court
rendered a so-called order declaring the marriage null and
void ab initio.
630
Much later, the wife filed a petition under Rule 47

in t h e C o u r t of A p p e a l s to nullify t h e final o r d e r of
the lower court on the ground of extrinsic fraud and lack
of jurisdiction over her person. She also alleged in an
amended petition t h a t she did not avail herself of the
remedies of new trial, appeal or petition for relief from
judgment. The appellate court dismissed the petition on
the ground t h a t petitioner failed to explain why she did
not comply with the condition precedent of first resorting
to the aforestated remedies or t h a t the same were no longer
available through no fault of her own.
The Supreme Court sustained the Court of Appeals
on this point since a party must justify the failure to avail
of such remedies in order to avoid abuse of the remedy
provided by Rule 47. However, the latter court erred in
dismissing the petition since it was also grounded on lack
of jurisdiction. A judgment or final order issued without
jurisdiction is null and void and may be assailed anytime
without complying with the pre-conditions in Rule 47,
hence t h e said final order was reversed and t h e case
r e m a n d e d t o t h e C o u r t o f A p p e a l s for a p p r o p r i a t e
proceedings.
5. A l t h o u g h S e c . 2 of t h i s R u l e p r o v i d e s t h a t
a n n u l m e n t of a j u d g m e n t or order of a Regional Trial
Court may be based only on the grounds of extrinsic fraud
and lack of jurisdiction, jurisprudence recognizes denial
of due process as an additional ground (Spouses Gorgonio
Benatiro, etc., et al. vs. Heirs of Evaristo Cuyos, et al.,
G.R. No. 161220, July 30, 2008, and cases therein cited).
Sec. 3. Period for filing action. — If b a s e d on
e x t r i n s i c fraud, t h e a c t i o n m u s t be filed w i t h i n four
(4) y e a r s from its d i s c o v e r y ; and if based on lack of
jurisdiction, before it is barred by laches or estoppel,
(n)
631
NOTES
1. The period for the filing of the action on the ground

of extrinsic fraud corresponds to t h e s a m e period for
a n n u l m e n t of contracts on t h a t ground (Art. 1371, Civil
Code), as well as the time when the period s t a r t s to run.
2. The defense of lack of jurisdiction may be barred
by laches or estoppel. While there are several definitions
of laches, a simple expression of its concept is t h a t it is
such inexcusable delay in t h e a s s e r t i o n of rights or a
failure to prosecute a claim, within a reasonable and proper
period, which w a r r a n t s the presumption t h a t a party has
waived his right (see Winget vs. Rockwood, 69 F. 2d 326,
332; Burton vs. Ryan, 88 Ind. App. 549, 165 N.E. 260;
Harrison vs. Miller, 124 W. Va. 550, 21 S.E. 2d 674).
For p r o c e d u r a l p u r p o s e s , t h e estoppel referred to
here is actually estoppel by laches, which is t h a t failure
to do s o m e t h i n g which should be done or to claim or
enforce a right at a proper time [Hutchinson vs. Kenny,
27 F. 2d 254] or a neglect to do something which one should
do or to seek or enforce a right at a proper time / J e t t vs.
Jett, 171 Ky. 548, 188 S.W. 669] (Black's Law Dictionary,
4th ed., 1017). See Note 17, et seq. in t h e G e n e r a l
Principles of this volume discussing the cases decided by
t h e S u p r e m e Court b a r r i n g a t t a c k s raised against the
jurisdiction of lower courts where the complaining party
was guilty of estoppel by laches.
Sec. 4. Filing and contents of petition. — T h e a c t i o n

shall be c o m m e n c e d by filing a verified p e t i t i o n
a l l e g i n g t h e r e i n w i t h p a r t i c u l a r i t y t h e facts a n d t h e
l a w r e l i e d u p o n for a n n u l m e n t , a s w e l l a s t h o s e
s u p p o r t i n g t h e petitioner's good a n d s u b s t a n t i a l
c a u s e of a c t i o n or defense, as t h e case m a y be.
T h e p e t i t i o n s h a l l b e filed i n s e v e n (7) c l e a r l y
legible copies, together with sufficient copies
632
c o r r e s p o n d i n g to the n u m b e r of respondents. A
certified t r u e copy of t h e j u d g m e n t or final o r d e r or
resolution shall be attached to the original copy of
t h e p e t i t i o n i n t e n d e d for t h e c o u r t a n d i n d i c a t e d as
such by the petitioner.
The p e t i t i o n e r shall also submit t o g e t h e r with
the petition affidavits of witnesses or d o c u m e n t s
s u p p o r t i n g t h e cause of action or defense a n d a
sworn certification that he has not theretofore
commenced any other action involving the same
issues in the Supreme Court, the Court of Appeals
or different divisions thereof, or any o t h e r t r i b u n a l
or agency; if there is such other action or
proceeding, he must state the status of the same,
and if he should thereafter learn t h a t a similar
a c t i o n o r p r o c e e d i n g h a s b e e n filed o r i s p e n d i n g
before the S u p r e m e Court, the Court of Appeals, or
different divisions thereof, or any o t h e r t r i b u n a l or
agency, he undertakes to promptly inform the
aforesaid courts and other tribunal or agency
t h e r e o f w i t h i n five ( 5 ) d a y s t h e r e f r o m , (n)
NOTES
1. J u s t like motions for new trial and petitions for

relief from judgment, the verified petition for annulment
under this section must state with particularity the facts
a n d law s u s t a i n i n g t h e g r o u n d t h e r e f o r , a n d t h o s e
supporting the petitioner's good and substantial cause of
action or defense. The first is the f u n d a m e n t a l
requirement, but the second is just as important in order
to convince t h e court t h a t s o m e t h i n g may indeed be
achieved should the petition be given due course. This
second r e q u i r e m e n t m u s t f u r t h e r b e s u p p o r t e d b y
affidavits or documents showing, at least prima facie, the
validity of petitioner's claim.
633
2. The last p a r a g r a p h also requires the submission

of a sworn certification against forum shopping already
discussed in the preceding Rules.
Sec. 5. Action by the court. — S h o u l d t h e c o u r t

find n o s u b s t a n t i a l m e r i t i n t h e p e t i t i o n , t h e same
m a y b e d i s m i s s e d o u t r i g h t w i t h s p e c i f i c r e a s o n s for
such dismissal.
S h o u l d prima facie m e r i t b e f o u n d i n t h e
p e t i t i o n , t h e s a m e s h a l l b e g i v e n d u e c o u r s e , and
s u m m o n s s h a l l b e s e r v e d o n t h e r e s p o n d e n t , (n)
Sec. 6. Procedure. — T h e p r o c e d u r e in o r d i n a r y
civil c a s e s shall be o b s e r v e d . S h o u l d a trial be
necessary, the reception of the evidence may be
r e f e r r e d to a m e m b e r of t h e c o u r t or a j u d g e of a
R e g i o n a l Trial Court, (n)
NOTES
1. In effect, and j u s t like the procedure in petitions

for relief u n d e r Rule 38, Sec. 5 of this Rule contemplates
two stages, t h a t is, a preliminary evaluation of the petition
for prima facie m e r i t t h e r e i n and, in t h e affirmative,
the issuance of s u m m o n s as in ordinary civil cases and
such a p p r o p r i a t e proceedings thereafter as contemplated
in Sec. 6.
2. T a k e n altogether, therefore, t h e action may be

dismissed outright if t h e initiatory petition itself reveals
lack of m e r i t from t h e v e r y a l l e g a t i o n s thereof; or,
t h e r e a f t e r d u r i n g t h e p r e l i m i n a r y evaluation after the
first s t a g e of t h e h e a r i n g , t h e s a m e may likewise be
dismissed upon consideration of the evidence and
a r g u m e n t s adduced therefor.
634
Sec. 7. Effect of judgment. — A j u d g m e n t of

annulment shall set aside the questioned judgment
o r final o r d e r o r r e s o l u t i o n a n d r e n d e r t h e s a m e null
and void, without prejudice to the original action
b e i n g r e f i l e d i n t h e p r o p e r court. H o w e v e r , w h e r e
t h e j u d g m e n t o r final o r d e r o r r e s o l u t i o n i s s e t a s i d e
o n t h e g r o u n d o f e x t r i n s i c fraud, t h e c o u r t m a y o n
m o t i o n o r d e r t h e trial c o u r t to try t h e c a s e as if a
t i m e l y m o t i o n for n e w t r i a l h a d b e e n g r a n t e d
t h e r e i n , (n)
NOTES
1. Where the questioned judgment, final order or

resolution is annulled, either on the ground of extrinsic
fraud or lack of jurisdiction, the same shall be set aside
and considered null and void. Thereafter, as provided in
the first sentence of this section which more properly refers
to a n n u l m e n t on the ground of lack of jurisdiction, the
aggrieved party may refile the action in the proper court.
This may involve a different court of competent jurisdiction
in the instance where the judgment in the original action
is annulled because the court which rendered t h e same
had no j u r i s d i c t i o n over t h e s u b j e c t - m a t t e r . W h e r e ,
however, the reason for such annulment was because of
lack of jurisdiction over the defendant, the action may be
refiled in t h e s a m e original court provided it has
jurisdiction over the subject-matter and is the court of
proper venue or no issue on venue is raised.
2. Where t h e a n n u l m e n t was based on extrinsic
fraud c o m m i t t e d by t h e offending p a r t y , t h e second
sentence of this section provides an alternative procedure.
On motion of the prevailing party on justifiable grounds,
he may be allowed to no longer refile the action and the
trial court which rendered the questioned judgment shall
be ordered to try the case anew as if a timely motion for
new trial had been granted therein. The difference lies
635
in the fact t h a t its original judgment was not tainted by

jurisdictional defects, but by the deception which resulted
in prejudicial errors therein.
Sec. 8. Suspension of prescriptive period. — T h e

p r e s c r i p t i v e p e r i o d for t h e r e f i l i n g o f t h e a f o r e s a i d
o r i g i n a l a c t i o n s h a l l b e d e e m e d s u s p e n d e d from
t h e filing of s u c h o r i g i n a l a c t i o n u n t i l t h e finality
of the j u d g m e n t of annulment. However, the
prescriptive period shall not be suspended where
the extrinsic fraud is a t t r i b u t a b l e to the plaintiff in
t h e o r i g i n a l a c t i o n , (n)
NOTE
1. For purposes of computing the prescriptive period

within which the same original action may be refiled as
authorized in the next preceeding section, the prescriptive
period provided by law for such type of action must first
be considered. From t h a t period shall be deducted the
length of time which t r a n s p i r e d from the date when the
action was originally filed in t h e t r i a l court up to the
finality of the j u d g m e n t which eventually annulled the
questioned j u d g m e n t of t h a t trial court. The resulting
balance of the prescriptive period may t h e n be availed of
by the aggrieved p a r t y for the refiling of the same action.
However, if the extrinsic fraud which resulted in the
a n n u l m e n t of j u d g m e n t of the trial court is attributable to
the plaintiff in the original action, the suspension of the
prescriptive period authorized in this section will not apply.
Sec. 9. Relief available. — T h e j u d g m e n t of

annulment may include the award of damages,
a t t o r n e y ' s fees a n d o t h e r relief.
If t h e q u e s t i o n e d j u d g m e n t or final o r d e r or
resolution had already been executed, the court
m a y issue such o r d e r s of r e s t i t u t i o n or o t h e r relief
636
RULE 47 ANNULMENT OF JUDGMENTS OR SEC. 10
as justice and equity may warrant under the

c i r c u m s t a n c e s , (n)
NOTE
1. Orders of restitution or reparation of damages are

authorized to be issued by the trial court where an executed
j u d g m e n t is reversed totally or partially, or annulled on
appeal or otherwise (Sec. 5, Rule 39). If restitution can
no longer be effected, the relief may be in the form of
c o m p e n s a t i o n u n d e r t h e s a m e formula s u g g e s t e d i n
Po Pauco vs. Tan Juco (49 Phil. 349), cited u n d e r t h e
aforesaid section of Rule 39.
Sec. 10. Annulment of judgments or final orders of

Municipal Trial Courts. — An a c t i o n to a n n u l a
j u d g m e n t or final o r d e r of a M u n i c i p a l Trial C o u r t
s h a l l b e filed i n t h e R e g i o n a l T r i a l C o u r t h a v i n g
jurisdiction over the former. It shall be treated as
an o r d i n a r y civil a c t i o n a n d s e c t i o n s 2, 3, 4, 7, 8 a n d
9 o f t h i s R u l e s h a l l b e a p p l i c a b l e t h e r e t o , (n)
NOTE
1. Sec. 19(6), in relation to Sec. 9(2), both of B.P. Blg. 129, is considered as the jurisdictional basis for this
power of the Regional Trial Courts to annul the judgments
or final orders of the lower courts.
637
R U L E 48
PRELIMINARY CONFERENCE
S e c t i o n 1. Preliminary conference. — At a n y t i m e
d u r i n g t h e p e n d e n c y o f a c a s e , t h e c o u r t m a y call
the parties and their counsel to a preliminary
conference:
(a) T o c o n s i d e r t h e p o s s i b i l i t y o f a n a m i c a b l e
settlement, except when the case is not allowed by
law to be c o m p r o m i s e d ;
(b) T o d e f i n e , s i m p l i f y a n d c l a r i f y t h e i s s u e s
for d e t e r m i n a t i o n ;
(c) T o f o r m u l a t e s t i p u l a t i o n s o f f a c t s a n d
admissions of d o c u m e n t a r y exhibits, limit the
n u m b e r of w i t n e s s e s to be p r e s e n t e d in c a s e s falling
within the original jurisdiction of the court, or
those within its appellate jurisdiction where a
m o t i o n for n e w t r i a l i s g r a n t e d o n t h e g r o u n d o f
newly discovered evidence; and
(d) T o t a k e u p s u c h o t h e r m a t t e r s w h i c h m a y
aid t h e c o u r t in t h e p r o m p t disposition of t h e case.
( R u l e 7, CA I n t e r n a l R u l e s ) (n)
Sec. 2. Record of the conference. — T h e p r o c e e d i n g s

at such conference shall be recorded and upon the
c o n c l u s i o n thereof, a r e s o l u t i o n shall be issued
e m b o d y i n g all t h e actions t a k e n t h e r e i n , the
stipulations and admissions made, and the issues
d e f i n e d , (n)
Sec. 3. Binding effect of the results of the conference-

- Subject to such modification which may be made
to p r e v e n t manifest injustice, the resolution in the
preceding section shall control the subsequent
638
RULE 48 PRELIMINARY CONFERENCE SEC. 3
p r o c e e d i n g s i n t h e c a s e u n l e s s , w i t h i n five (5) d a y s
from n o t i c e thereof, a n y party s h a l l s a t i s f a c t o r i l y
show valid cause why the same should not be
f o l l o w e d , (n)
NOTES
1. These new Rule has adopted most of the grounds

for pre-trial in t h e trial courts and with virtually the same
objective, t h a t is , to explore and utilize all such appropriate
means as may assist in the early disposition of the case.
The minor difference is t h a t in the Court of Appeals, this
procedural device may be availed of not only in original
actions but also in cases on appeal wherein a new trial
was granted on the ground of newly discovered evidence.
It will be recalled t h a t the Court of Appeals can act as a
trier of facts, hence the preliminary conference authorized
by this Rule is a convenient adjunct to such power and
function.
2. The provisions of Secs. 2 and 3 r e g a r d i n g t h e

record of t h e p r o c e e d i n g s a n d b i n d i n g effect of t h e
resolution embodying the results of the conference are
v i r t u a l l y t h e s a m e as those provided for in p r e - t r i a l
conferences in civil cases in the trial courts.
3. While it may a p p e a r t h a t the preliminary
conference is initiated by a call for t h a t purpose by the
court, it is not prohibited or improper for either or both of
the parties to suggest the same to the court on motion
and for valid reasons.
639
RULE 49
ORAL ARGUMENT
S e c t i o n 1. When allowed. — At i t s o w n i n s t a n c e
or upon motion of a party, the court may h e a r the
parties in oral a r g u m e n t on the merits of a case, or
on any material incident in connection there-
w i t h , (n)
The oral a r g u m e n t shall be limited to such
m a t t e r s as t h e c o u r t m a y specify in its o r d e r or
r e s o l u t i o n , ( l a , R48)
Sec. 2. Conduct of oral argument. — U n l e s s

authorized by the court, only one counsel may
a r g u e for a p a r t y . T h e d u r a t i o n a l l o w e d for e a c h
p a r t y , t h e s e q u e n c e o f t h e a r g u m e n t a t i o n , a n d all
other related matters shall be as directed by the
c o u r t , (n)
NOTES
1. This Rule was t a k e n from a section each of former

Rules 48 and 49. The regulatory details for oral argument
as provided for in the former Rule 48 have been eliminated
as it was deemed b e t t e r to leave such m a t t e r s to the
discretion of t h e court on a case to case basis as the
circumstances and n a t u r e of the issues may require.
2. While Sec. 4 of t h e n Rule 48, which provided t h a t
a m e m o r a n d u m may be submitted by a party in lieu of
participating at the hearing, has been eliminated in this
new rule, t h e court may still allow t h e submission of
m e m o r a n d a in lieu of or in addition to t h e a r g u m e n t s
adduced at the hearing. However, Sec. 8 of t h a t former
Rule with its exceptional requirement for the presence of
the detained person in habeas corpus cases on appeal, both
640
RULE 49 ORAL ARGUMENT
at the oral a r g u m e n t and at the rendition of the judgment

therein, has not been reproduced since parties to a case
on appeal are not required to personally appear in the
appellate court.
Sec. 3. No hearing or oral argument for motions. —

M o t i o n s s h a l l n o t b e s e t for h e a r i n g a n d , u n l e s s t h e
court otherwise directs, no hearing or oral
a r g u m e n t shall be allowed in s u p p o r t thereof. The
a d v e r s e p a r t y m a y file o b j e c t i o n s t o t h e m o t i o n
w i t h i n (6) d a y s f r o m s e r v i c e , u p o n t h e e x p i r a t i o n o f
w h i c h s u c h m o t i o n s h a l l b e d e e m e d s u b m i t t e d for
r e s o l u t i o n . (2a, R49)
NOTE
1. Unlike the procedure in the lower courts, motions

in the Supreme Court and Court of Appeals do not contain
notices of hearing of said motions as no oral a r g u m e n t s
will be heard in support thereof; and, if the appellate court
desires to hold a hearing thereon, it will itself set the date
with notice to the parties.
If such a notice of hearing is appended to the motion,
the court may simply disregard the same.
641
RULE 50
D I S M I S S A L OF APPEAL
S e c t i o n 1. Grounds for dismissal of appeal. — An

a p p e a l m a y b e d i s m i s s e d b y t h e Court o f A p p e a l s ,
o n its o w n m o t i o n o r o n t h a t o f t h e a p p e l l e e , o n t h e
following grounds:
(a) F a i l u r e o f t h e r e c o r d o n a p p e a l t o s h o w o n
its face t h a t t h e a p p e a l w a s t a k e n w i t h i n t h e period
fixed b y t h e s e R u l e s ;
(b) F a i l u r e to file t h e n o t i c e of a p p e a l or t h e
record on appeal within the period prescribed by
these Rules;
(c) F a i l u r e o f t h e a p p e l l a n t t o pay t h e d o c k e t
and o t h e r lawful f e e s as p r o v i d e d in s e c t i o n 5 of Rule
40 a n d s e c t i o n 4 of R u l e 41 (As amended by Resolution
of the Supreme Court, dated February 17, 1998);
(d) U n a u t h o r i z e d a l t e r a t i o n s , o m i s s i o n s o r
additions in the approved record on appeal as
p r o v i d e d in s e c t i o n 4 of R u l e 44;
(e) F a i l u r e o f t h e a p p e l l a n t t o s e r v e a n d file
the required number of copies of his brief or
memorandum within the time provided by these
Rules;
(f) A b s e n c e of s p e c i f i c a s s i g n m e n t of e r r o r s in
t h e a p p e l l a n t ' s brief, o r o f p a g e r e f e r e n c e s t o t h e
r e c o r d as r e q u i r e d in s e c t i o n 13, p a r a g r a p h s (a), (c),
(d) a n d (f) of R u l e 44;
(g) F a i l u r e o f t h e a p p e l l a n t t o t a k e t h e
n e c e s s a r y s t e p s for t h e c o r r e c t i o n o r c o m p l e t i o n o f
the record within the time limited by the court in
its order;
642
RULE 50 DISMISSAL OF APPEAL SEC. 1
(h) F a i l u r e o f t h e a p p e l l a n t t o a p p e a r a t t h e
preliminary conference or to comply with orders,
circulars, or directives of the court without
justifiable cause; and
(i) T h e f a c t t h a t t h e o r d e r o r j u d g m e n t
a p p e a l e d from i s n o t a p p e a l a b l e , ( l a )
NOTES
1. The former Rule 50 h a s been a m e n d e d in t h e

present revised Rules by the deletion of par. (c) thereof
(failure of the appellant to prosecute his appeal under the
then Sec. 3 of Rule 46), and the addition of the present
p a r . (h) r e g a r d i n g non-appearance at the p r e l i m i n a r y
conference and non-compliance with court issuances.
The other grounds have been updated to conform with
supervening procedural changes, such as the elimination
of the appeal bond and the fact t h a t the briefs and record
on appeal do not have to be printed.
2. W i t h t h e e x c e p t i o n of Sec. 1(b) w h i c h ,
parenthetically, has been duly modified by the deletion
of t h e f o r m e r r e q u i r e m e n t for an a p p e a l bond, t h e
foregoing g r o u n d s for t h e dismissal of an a p p e a l a r e
directory and not mandatory, and it is not the ministerial
duty of the court to dismiss the appeal (Ayala Land, Inc.
vs. Carpo, et al., G.R. No. 140162, Nov. 22, 2000). Hence,
non-compliance with Sec. 1(f) is not a mandatory ground
for the dismissal of the appeal (Maqui, et al. vs CA, et al.,
L 41609 Feb. 24, 1976; Vda. de Haberer vs. CA, et al.,
L-42709, May 26, 1981). The same is true with respect
to Sec. 1(d) (Panes vs. CA, et al., G.R. No. 58321,
Jan. 31, 1983) and the present Sec. 1(g) (Advincula, et
al. vs. IAC, et al., G.R. No. 75310, Jan. 16, 1987).
3. Other grounds for the dismissal of an appeal are:
(a) By agreement of the parties, as where the case
was amicably settled by them (Arcos vs. Aradales, L-27344,
643
May 28, 1970);

(b) Where t h e a p p e a l e d case h a s become moot or
academic (Camus vs. CA, L-13125, Feb. 13, 1969; NAW ASA
vs. Cloribel, L-26753, Nov. 28, 1969); and
(c) Where the appeal is frivolous (De la Cruz, et al.
vs. Blanco, et al., 73 Phil. 596; Fernion vs. Sta. Romano,
L-19161, April 29, 1966) or dilatory (Soriano vs. Abeto,
L-19661, Feb. 28, 1964; Rose Industries, Inc. vs. CA,
et al., L-45581, Dec. 29, 1978).
4. The provision in Sec. 1(a) t h a t t h e record on

appeal, whenever its filing is required, must show on its
face t h a t t h e a p p e a l w a s p e r f e c t e d o n t i m e i s a
jurisdictional requisite, and a defect in such requirement
w a r r a n t s dismissal of the appeal, even if briefs of both
p a r t i e s have already been filed (Gov't vs. Antonio, et al.,
L-23736, Oct. 19, 1965, o v e r r u l i n g Santiago vs.
Valenzuela, et al., 78 Phil. 397). The certification of the
record on appeal by the t r i a l court after the lapse of the
reglementary period does not restore such lost jurisdiction
(Alvero vs. De la Rosa, 76 Phil. 428).
5. It w a s f o r m e r l y h e l d t h a t t h e f a i l u r e of t h e
record on appeal to show on its face all the facts reflecting
t h e t i m e l i n e s s of t h e a p p e a l r e n d e r s it m a n d a t o r y for
t h e a p p e a l t o b e d i s m i s s e d , a s s a i d facts a r e j u r i s -
dictional (Reyes vs. Carraso, L-28783, Mar. 31, 1971;
Workmen's Insurance Co., Inc. vs. Augusto, et al., L-31060,
July 29, 1971; Imperial Insurance, Inc. vs. CA, et al.,
L-28722, Oct. 29, 1971). However, this "material data"
rule has been liberalized starting with the case of Pimentel,
et al. vs. CA, et al. (L-39684, J u n e 27, 1975).
B u t w h e r e t h e m o t i o n to d i s m i s s t h e a p p e a l for
non-compliance with Sec. 1(a) of this Rule was filed with
t h e court a quo, said appeal should not be dismissed but
the lower court should order the a m e n d m e n t and
completion thereof. This is different from the rule where
644
the motion to dismiss was filed in the appellate court

(Ozaeta, Jr., et al. vs. CA, et al., L-26938, Oct. 29, 1971)
as the provisions of Sec. 6, Rule 41 are principally intended
for the appellate courts (Tanalega, et al. vs. Tizon, et al.,
L-30345, Mar. 27, 1974).
6. W h e r e a p p e l l a n t s ' brief failed to m a k e p a g e

references to the record to support their factual allegations
and also failed to make a separate s t a t e m e n t of facts, in
violation of Sec. 16(d), Rule 46 (now, Sec. 13[d], Rule 44),
the appeal may be properly dismissed (Genobiagan vs. CA,
et al., L-44323, Mar. 2, 1977; Heirs of Abelardo V.
Palomique, et al. vs. CA, et al., L-39288-89, Jan. 31, 1985).
7 . F a i l u r e t o file a p p e l l a n t ' s b r i e f w i t h i n t h e
reglementary period need not necessarily cause dismissal
of the appeal where the same was due to force majeure,
i.e., power blackouts which prevented completion of the
printing and a request for extension was seasonably filed,
w i t h t h e brief t h e r e a f t e r actually filed by a p p e l l a n t
(Padosas vs. CA, et al., L-30871, April 25, 1974).
Sec. 2. Dismissal of improper appeal to the Court of

Appeals. — A n a p p e a l u n d e r R u l e 4 1 t a k e n f r o m t h e
Regional Trial Court to the Court of Appeals raising
only q u e s t i o n s of law shall be dismissed, issues
p u r e l y of law n o t b e i n g r e v i e w a b l e by said court.
Similarly, an a p p e a l by notice of appeal instead of
b y p e t i t i o n for r e v i e w f r o m t h e a p p e l l a t e j u d g m e n t
of a R e g i o n a l T r i a l C o u r t s h a l l be d i s m i s s e d , (n)
An appeal erroneously taken to the Court of
Appeals shall not be transferred to the appropriate
c o u r t b u t s h a l l b e d i s m i s s e d o u t r i g h t . (3a)
NOTES
1. This provision, together with Sec. 6 of Rule 56,

was taken from Circular No. 2-90 of the Supreme Court
645
which, effective March 9, 1990, introduced new guidelines

in appeals to the Supreme Court and the Court of Appeals.
U n d e r t h e f o r m e r Sec. 3 of R u l e 50, w h e r e t h e
appealed case was erroneously brought to the Court of
Appeals, it should not dismiss the appeal but shall certify
t h e case to t h e proper court, with a specific and clear
s t a t e m e n t of the grounds therefor. Also, where the appeal
was erroneosly brought to the Supreme Court, as where
it involved questions of fact, t h e rule t h e n was t h a t it
should be certified to the Court of Appeals (Rosales vs.
Rosales, 105 Phil. 1131). These were p u r s u a n t to the
provisions of Sec. 3 1 , R.A. 296 t h a t cases erroneously
appealed to either the Supreme Court or the Court of the
Court of Appeals should be sent to t h e proper court and
the same shall decide the appeal as if it had been properly
brought before it.
In the aforementioned Circular No. 2-90, the Supreme
Court took note of t h e fact t h a t t h e former Rules 41 and
42 of the 1964 Rules of Court, which prescribed a common
mode of a p p e a l to t h e Court t o g e t h e r w i t h a common
procedure for considering and resolving an appeal, are no
longer in force. Appeals from the Regional Trial Courts
to t h e S u p r e m e Court may be made only by a petition for
review on certiorari, except only in criminal cases where
the penalty imposed was life imprisonment or reclusion
perpetua. On the other hand, appeals from the Regional
Trial Courts to t h e Court of Appeals may be t a k e n either
by writ of error (ordinary appeal) or by petition for review.
Accordingly, t h e S u p r e m e Court declared t h a t no
transfer of appeals, erroneously t a k e n to it or to the Court
of Appeals, whichever of these t r i b u n a l s has appropriate
appellate jurisdiction, will be allowed. Also, elevating
such appeal to either of said appellate courts by the wrong
mode of appeal shall be ground for the dismissal thereof.
This section now provides for the consequences of an
improper appeal to the Court of Appeals. Indeed, under
646
t h e former p r a c t i c e , t a k i n g a n i m p r o p e r a p p e a l w a s
sometimes resorted to as a dilatory strategy since t h e
appellant was aware t h a t the appealed case would merely
be transferred to the proper appellate court. Thus, for
i n s t a n c e , a j u d g m e n t of t h e lower c o u r t b a s e d on a
stipulation of facts would be taken to the Court of Appeals
although no question of fact was involved. Under this
new procedure, such a p p e a l which at most could only
involve questions of law shall no longer be transferred to
the Supreme Court but shall be dismissed outright.
2. Where the defendant-appellant appealed directly

to the Supreme Court on pure questions of law, while the
plaintiff-appellant appealed to the Court of Appeals on
questions of law and fact, disputing the facts set forth in
t h e brief filed by d e f e n d a n t - a p p e l l a n t in t h e former's
appeal to the Supreme Court, the case should be remanded
to the Court of Appeals which has jurisdiction thereof (Hoey
vs. Aurelio & Co., Inc., L-31111, June 30, 1971, citing
Justo vs. Hernando, 89 Phil. 268 and Sec. 2, R.A. 5440).
It is believed t h a t this is still a valid and applicable rule of
procedure.
3. It is within the competence of the trial court to

determine whether the appeal interposed is based on pure
questions of law or mixed questions of law and fact, for
the purpose of deciding on the correctness of the procedural
mode of appeal adopted by the appellant, the court to
which the appeal is to be taken and, consequently, whether
to give due course thereto. Sec. 3 (now, Sec. 2), Rule 50
applies only when the appeal is already brought to the
Court of Appeals at which time it will determine whether
the appeal was brought to the correct appellate court
(Heirs of Ramon Pizarro, Sr. vs. Consolacion, et al.,
G.R. No. 51278, May 8, 1988).
4. Where the appeal was dismissed through fraud
practiced upon the appellate court, it has the inherent right
to recall t h e r e m i t t i t u r or r e m a n d of t h e record and
647
reinstate the appeal (Heirs of Clemente Celestino vs. CA,

et al., L-38690, Sept. 12, 1975).
5. A resolution of the Court of Appeals dismissing
the appeal and remanding the case to the trial court for
f u r t h e r p r o c e e d i n g s is m e r e l y i n t e r l o c u t o r y , hence a
motion for its reconsideration filed a year later may be
e n t e r t a i n e d and granted (Valdez vs. Bagasao, L-46608,
Mar. 8, 1978).
Sec. 3. Withdrawal of appeal. — An a p p e a l m a y

be w i t h d r a w n as of right at any time before the
f i l i n g o f t h e a p p e l l e e ' s brief. Thereafter, the
withdrawal may be allowed in the discretion of the
court. (4a)
648
RULE 51
JUDGMENT
S e c t i o n 1. When case deemed submitted for judgment.

— A c a s e s h a l l be d e e m e d s u b m i t t e d for j u d g m e n t :
A. In o r d i n a r y a p p e a l s . —
1) Where no h e a r i n g on the merits of t h e main
case is held, upon the filing of the last pleading,
brief, o r m e m o r a n d u m r e q u i r e d b y t h e R u l e s o r b y
t h e c o u r t itself, o r t h e e x p i r a t i o n o f t h e p e r i o d for
its filing.
2) W h e r e s u c h a h e a r i n g is held, u p o n its
t e r m i n a t i o n or upon the filing of the last pleading
or m e m o r a n d u m as may be required or permitted
t o b e filed b y t h e c o u r t , o r t h e e x p i r a t i o n o f t h e
p e r i o d for i t s filing.
B . I n o r i g i n a l a c t i o n s a n d p e t i t i o n s for r e -
view. —
1 ) W h e r e n o c o m m e n t i s filed, u p o n t h e e x -
piration of the period to comment.
2) W h e r e no h e a r i n g is held, u p o n t h e filing of
the last pleading required or permitted to be filed
b y t h e c o u r t , o r t h e e x p i r a t i o n o f t h e p e r i o d for i t s
filing.
3) W h e r e a h e a r i n g on t h e m e r i t s of t h e m a i n
case is held, u p o n its t e r m i n a t i o n or u p o n t h e filing
of the last pleading or m e m o r a n d u m as may be
required or permitted to be filed by the court, or
t h e e x p i r a t i o n o f t h e p e r i o d for its f i l i n g (n)
NOTES
1. The new provisions in this section are intended to

clarify and provide specific rules on when a case is deemed
649
submitted for judgment, depending on w h e t h e r what is

involved is an ordinary appeal, petition for review or an
o r i g i n a l a c t i o n , a n d w h e t h e r o r n o t a h e a r i n g was
conducted by the appellate court. The determination of
the date of submission of the case is made doubly important
by the fact t h a t u n d e r the Constitution such date is the
reckoning point for the periods for deciding or resolving
the case or m a t t e r , and which periods are now mandatory
in n a t u r e .
2. T h e r e l e v a n t p r o v i s i o n s of A r t . V I I I of t h e
Constitution are as follows:
"Sec. 15. (1) All cases or m a t t e r s filed after the
effectivity of t h i s Constitution m u s t be decided or
resolved w i t h i n twenty-four m o n t h s from d a t e of
submission for the Supreme Court, and, unless reduced
by t h e S u p r e m e Court, twelve m o n t h s for all lower
collegiate courts, and three months for all other lower
courts.
(2) A case or m a t t e r shall be deemed submitted
for decision or resolution upon the filing of the last
pleading, brief, or memorandum required by the Rules
of Court or by t h e court itself.
(3) Upon t h e expiration of t h e corresponding
period, a certification to this effect signed by the Chief
Justice or the presiding judge shall forthwith be issued
and a copy thereof attached to t h e record of t h e case
or m a t t e r , and served upon the p a r t i e s . The
certification shall s t a t e why a decision or resolution
has not been rendered or issued within said period.
(4) D e s p i t e t h e e x p i r a t i o n of t h e applicable
mandatory period, the court, without prejudice to such
responsibility as may have been incurred in
consequence thereof, shall decide or resolve the case
o r m a t t e r s u b m i t t e d t h e r e t o for d e t e r m i n a t i o n ,
without further delay."
650
RULE 51 JUDGMENT SEC. 2
3. When an appellate court has once declared the

law in a case, such declaration continues to be the law of
t h a t case even on a subsequent appeal. The rule made
by an appellate court, while it may be reversed in other
cases, cannot be departed from in subsequent proceedings
in the same case. The rule is necessary as a m a t t e r of
policy in order to end litigation; otherwise, it would be
i m p o s s i b l e for a n a p p e l l a t e c o u r t t o p e r f o r m i t s
duties efficiently if a question, already considered and
decided by it, w e r e to be litigated anew in t h e s a m e
case upon any and every subsequent appeal (Ramos vs.
IAC, et al., G.R. No. 72686, Mar. 8, 1989).
4. The law of the case has been defined as the opinion

delivered on a former appeal. It means t h a t whatever is
once irrevocably established, as the controlling legal rule
or decision between the same parties in the same case,
continues to be the law of the case, whether correct on
general principles or not, so long as the facts on which
such decision was predicated continue to be the facts before
the court. Under such circumstances, no question
necessarily involved and decided on t h a t appeal will be
considered on a second appeal or writ of error in the same
case. The rule on the law of the case does not apply to
resolutions r e n d e r e d in connection with t h e case b u t
wherein no rationale has been expounded on the merits
of t h a t action (Jarantilla vs. CA, et al., G.R. No. 80194,
Mar. 21, 1989).
Sec. 2. By whom rendered. — T h e j u d g m e n t s h a l l

be rendered by the members of the court who
participated in the deliberation on the merits of the
c a s e b e f o r e i t s a s s i g n m e n t t o a m e m b e r for t h e
w r i t i n g o f t h e d e c i s i o n , (n)
651
NOTE
1. This new Sec. 2 of the Rule simplifies the procedure

under t h e former Sec. 1 thereof which had provided rules
on who of the Justices may take p a r t in the adjudication
of the case. Now, the only d e t e r m i n a n t is who of them
participated in t h e deliberations on the merits of the case,
which deliberation t a k e s place before the assignment to
the ponente for t h e writing of the decision.
This procedure, in effect, adopts the Constitutional

provision on which of the Justices of the Supreme Court
may p a r t i c i p a t e in t h e decision of cases therein. It is
provided t h a t cases or m a t t e r s heard by the Supreme Court
en banc or by a d i v i s i o n " s h a l l be decided w i t h t h e
concurrence of a majority of the Members who actually
took p a r t in the deliberations on the issues in the case
and voted thereon" (Sec. 4[2] and [3], Art. VIII).
Sec. 3. Quorum and voting in the court. — T h e

p a r t i c i p a t i o n of all t h r e e J u s t i c e s of a division
shall be necessary at the deliberation and the
unanimous vote of the three Justices shall be
r e q u i r e d for t h e p r o n o u n c e m e n t o f a j u d g m e n t
or final r e s o l u t i o n . If t h e t h r e e J u s t i c e s do not
reach a u n a n i m o u s vote, the clerk shall enter
the votes of the dissenting Justice in the
record. Thereafter, the C h a i r m a n of the division
shall refer the case, together with the minutes
of the deliberation, to the Presiding Justice who
s h a l l d e s i g n a t e t w o J u s t i c e s c h o s e n b y raffle
from a m o n g all t h e o t h e r m e m b e r s of t h e court
to sit t e m p o r a r i l y with them, forming a special
d i v i s i o n o f five J u s t i c e s . T h e p a r t i c i p a t i o n o f
a l l t h e five m e m b e r s o f t h e s p e c i a l d i v i s i o n s h a l l
b e n e c e s s a r y for t h e d e l i b e r a t i o n r e q u i r e d
in Section 2 of this Rule and the c o n c u r r e n c e
of a m a j o r i t y of s u c h division shall be r e q u i r e d
652
for t h e p r o n o u n c e m e n t o f a j u d g m e n t o r f i n a l
r e s o l u t i o n . (2a)
NOTES
1. This section, which is an amendment of the former

Sec. 2 of this Rule, sets out more in detail the requirements
for a quorum, the voting in a regular division of the court,
and the creation of a special division of five Justices under
the circumstances contemplated therefor.
2. This was taken, with modifications, from Sec. 6 of
Executive Order No. 33 which amended Sec. 11 of B.P. Blg. 129, effective July 28, 1986, as follows:
"Sec. 11. Quorum. - A majority of the actual

members of the court shall constitute a quorum for
its session en banc. Three members shall constitute
a quorum for the session of a division. The unanimous
vote of t h e t h r e e m e m b e r s of a division s h a l l be
necessary for the pronouncement of a decision or final
resolution, which shall be reached in consultation
before the writing of the opinion by any member of
the division. In the event t h a t the three members do
not reach a unanimous vote, the Presiding Justice
shall request the Raffle Committee of the court for
t h e d e s i g n a t i o n of two a d d i t i o n a l J u s t i c e s to sit
temporarily with them, forming a special division of
five members and the concurrence of a majority of
such division shall be necessary for the pronounce-
ment of a decision or final resolution. The designation
of such additional Justices shall be made strictly by
raffle."
3. To be binding, a judgment must be duly signed

and promulgated during the incumbency of the judge who
signed it. Where the decision was promulgated after two
of the three justices necessary to constitute a quorum in a
653
R U L E 51 R E M E D I A L LAW C O M P E N D I U M S E C S . 4, 5
division had lost their authority to act as justices by reason

of the p r e s i d e n t i a l acceptance of t h e i r resignations of
which they were informed before such promulgation, said
decision is null and void (Lao vs. To-Chip, et al., G.R.
No. 76594, Feb. 26, 1988).
Sec. 4. Disposition of a case. — T h e C o u r t of

A p p e a l s , i n t h e e x e r c i s e o f its a p p e l l a t e j u r i s d i c t i o n ,
m a y affirm, r e v e r s e , or modify t h e j u d g m e n t or final
o r d e r a p p e a l e d from, a n d m a y d i r e c t a n e w trial or
f u r t h e r p r o c e e d i n g s to be h a d . (3a)
NOTE
1. Where t h e Court of Appeals directs a new trial or

further proceedings, the case shall ordinarily be remanded
to the court a quo, as the Court of Appeals is not essentially
a trial court. However, u n d e r Sec. 5 of the aforestated
E x e c u t i v e O r d e r No. 33, which a m e n d e d t h e second
p a r a g r a p h of Sec. 9 of B.P. Blg. 129, it is expressly
provided t h a t -
"The Court of Appeals shall have the power to
r e c e i v e e v i d e n c e a n d p e r f o r m a n y a n d all a c t s
necessary to resolve factual issues raised on (a) cases
falling within its original jurisdiction, such as actions
for a n n u l m e n t o f j u d g m e n t s , a s p r o v i d e d i n
p a r a g r a p h (2) hereof; and in (b) cases falling within
its appellate jurisdiction wherein a motion for new
trial based only on the ground of newly discovered
evidence is granted by it."
Sec. 5. Form of decision. — E v e r y d e c i s i o n or

final r e s o l u t i o n of the court in a p p e a l e d cases
shall clearly and distinctly state the findings of
fact and the c o n c l u s i o n s of law on w h i c h it is
based, which may be contained in the decision or
f i n a l r e s o l u t i o n itself, o r a d o p t e d f r o m t h o s e set
654
forth in the decision, order, or resolution a p p e a l e d

from. ( S e c . 40, BP Blg. 129) (n)
NOTES
1. As indicated after this provision, this section was

actually t a k e n from Sec. 40 of B.P. Blg. 129. Art. VIII of
the Constitution contains a more comprehensive mandate
on this matter, t h u s :
"Sec. 14. No decision shall be rendered by any
court without expressing therein clearly and distinctly
the facts and the law on which it is based.
No p e t i t i o n for review or motion for recon-
sideration of a decision of the court shall be refused
due course or denied without stating the legal basis
therefor."
2. It will be noted t h a t t h e r e q u i r e m e n t for t h e

s t a t e m e n t of the facts and the law, as provided by the
Constitution, B.P. Blg. 129 and the foregoing section, refers
to a decision or, for t h a t matter, a final resolution. The
same does not apply to minute resolutions since these
u s u a l l y dispose of t h e case not on its m e r i t s b u t on
procedural or technical considerations, although the court
may, if it deems it necessary, briefly discuss the matter on
the merits in an extended resolution.
With respect to petitions for review (and this may be
considered broad enough to apply to the ordinary petition
for review, petition for review on certiorari, or petition for
c e r t i o r a r i ) a n d m o t i o n s for r e c o n s i d e r a t i o n , t h e
Constitution merely requires a statement of the legal basis
for the denial thereof or refusal of due course thereto.
Again, as already stated, the court may opt, but it is not
required, to issue an extended resolution thereon.
Sec. 6. Harmless errors. — No e r r o r in e i t h e r t h e

admission or the exclusion of evidence and no error
655
o r d e f e c t i n a n y r u l i n g o r o r d e r o r i n a n y t h i n g done
o r o m i t t e d b y t h e t r i a l c o u r t o r b y a n y o f t h e parties
is g r o u n d for g r a n t i n g a n e w t r i a l or for s e t t i n g
aside, modifying, or o t h e r w i s e disturbing a
j u d g m e n t or order, unless refusal to take such
actions appears to the court i n c o n s i s t e n t with
substantial justice. The court at every stage of
the proceedings must disregard any error or
d e f e c t w h i c h d o e s n o t affect t h e s u b s t a n t i a l rights
o f t h e p a r t i e s . (5a)
Sec. 7. Judgment where there are several parties. —

I n all a c t i o n s o r p r o c e e d i n g s , a n a p p e a l e d j u d g m e n t
m a y b e affirmed a s t o s o m e o f t h e a p p e l l a n t s , and
reversed as to others, and the case shall thereafter
be p r o c e e d e d w i t h , so far as n e c e s s a r y , as if s e p a r a t e
a c t i o n s had been begun and prosecuted; and
e x e c u t i o n o f t h e j u d g m e n t o f a f f i r m a n c e m a y b e had
accordingly, and costs may be adjudged in such
c a s e s , a s t h e c o u r t s h a l l d e e m p r o p e r . (6)
Sec. 8. Questions that may be decided. — No error

w h i c h d o e s not affect the j u r i s d i c t i o n over the
subject matter or the validity of the judgment
a p p e a l e d from o r t h e p r o c e e d i n g s t h e r e i n will b e
considered unless stated in the assignment of
errors, or closely related to or d e p e n d e n t on an
a s s i g n e d error a n d p r o p e r l y a r g u e d in t h e brief, save
a s t h e c o u r t m a y p a s s u p o n p l a i n e r r o r s a n d clerical
e r r o r s . (7a)
NOTES
1. Sec. 8, which is an a m e n d m e n t of the former Sec.

7 of this Rule, now includes some substantial changes in
the rules on assignment of errors. The basic procedural
rule is t h a t only errors claimed and assigned by a party
will be considered by the court, except errors affecting its
656
jurisdiction over the subject-matter. To this exception has

now b e e n a d d e d e r r o r s affecting t h e v a l i d i t y of t h e
judgment appealed from or the proceedings therein.
Also, even if the error complained of by a party is not
expressly stated in his assignment of errors but the same
is closely related to or dependent on an assigned error
and properly a r g u e d in his brief, such e r r o r may now
be c o n s i d e r e d by t h e c o u r t . T h e s e c h a n g e s a r e of
jurisprudential origin.
2. The procedure in the Supreme Court being

generally t h e same as t h a t in the Court of Appeals, unless
otherwise indicated (see Secs. 2 and 4, Rule 56), it has
been held t h a t t h e latter is clothed with ample authority
to review m a t t e r s , even if they are not assigned as errors
on appeal, if it finds t h a t their consideration is necessary
in a r r i v i n g at a j u s t decision of t h e case. Also, an
u n a s s i g n e d e r r o r closely related to an e r r o r properly
assigned (PCIB vs. CA, et al, L 34931, Mar. 18, 1988), or
upon which the determination of the question raised by
error properly assigned is dependent, will be considered
by the appellate court notwitstanding the failure to assign
it as error (Ortigas, Jr. vs. Lufthansa German Airlines,
L-28773, June 30, 1975; Soco vs. Militante, et al,
G.R. No. 58961, June 28, 1983).
It may also be observed t h a t under Sec. 8 of this Rule,
the appellate court is authorized to consider a plain error,
although it was not specifically assigned by the appellant
(Dilag vs. Heirs of Fortunato Resurreccion, 76 Phil. 650),
o t h e r w i s e it w o u l d be s a c r i f i c i n g s u b s t a n c e for
technicalities.
Sec. 9. Promulgation and notice of judgment. —

After the j u d g m e n t or final r e s o l u t i o n and
d i s s e n t i n g or s e p a r a t e o p i n i o n s , if any, are s i g n e d
by t h e J u s t i c e s t a k i n g part, t h e y shall be d e l i v e r e d
657
for f i l i n g t o t h e c l e r k w h o s h a l l i n d i c a t e t h e r e o n
the date of promulgation and cause true copies
thereof to be served upon the parties or their
c o u n s e l , (n)
Sec. 10. Entry of judgment and final resolutions. —

I f n o a p p e a l o r m o t i o n for n e w t r i a l o r r e c o n -
s i d e r a t i o n i s filed w i t h i n t h e t i m e p r o v i d e d i n t h e s e
Rules, the j u d g m e n t or final r e s o l u t i o n shall
f o r t h w i t h b e e n t e r e d b y t h e c l e r k i n t h e book o f
entries of judgments. The date w h e n the judgment
or final r e s o l u t i o n b e c o m e s e x e c u t o r y shall be
d e e m e d a s t h e d a t e o f its e n t r y . T h e r e c o r d shall
c o n t a i n t h e d i s p o s i t i v e p a r t o f t h e j u d g m e n t o r final
r e s o l u t i o n a n d s h a l l be s i g n e d by t h e clerk, w i t h a
c e r t i f i c a t e t h a t s u c h j u d g m e n t o r final r e s o l u t i o n
h a s b e c o m e final a n d e x e c u t o r y . (2a, R36)
NOTES
1. Sec. 9 enunciates the accepted procedural rule

and practice in the promulgation of judgments in civil cases
but, for p u r p o s e s of t h e a p p e l l a t e c o u r t s , it h a s been
expanded to take into account the filing of dissenting or
s e p a r a t e opinions, without which the main or majority
opinion must not be promulgated. However, in justifiable
situations or by a g r e e m e n t in the division, the filing of
dissenting or s e p a r a t e opinions may be reserved or the
majority opinion may be promulgated without prejudice
to the subsequent issuance of a more extended opinion,
provided the requisite votes for promulgation of judgment
have been obtained and recorded.
2. Sec. 10 a d o p t s t h e new c o n c e p t of e n t r y of
j u d g m e n t or final resolution, t h a t is, the date when it
became executory shall be deemed the date of its entry,
and not the date of the actual mechanical act of writing
out the fallo in the book of entries of j u d g m e n t s as was
658
RULE 51 JUDGMENT S E C . 11
the former rule. See Rule 36 and notes therein. In the

trial courts, the date of entry of judgment is important for
purposes of reckoning the periods involved in petitions for
relief of j u d g m e n t under Rule 38 and the revival of the
judgment under Rule 39. While those considerations are
not involved in judgments of appellate courts, the date of
entry is also important for purposes of the execution of
judgment, as explained in the succeeding sections of this
Rule.
Sec. 11. Execution of judgment. — E x c e p t w h e r e

t h e j u d g m e n t or final o r d e r or r e s o l u t i o n , or a
portion thereof, is ordered to be immediately
e x e c u t o r y , t h e m o t i o n for i t s e x e c u t i o n m a y o n l y
b e filed i n t h e p r o p e r c o u r t a f t e r i t s e n t r y .
In o r i g i n a l a c t i o n s in the Court of Appeals, its
w r i t of e x e c u t i o n s h a l l be a c c o m p a n i e d by a c e r t i f i e d
t r u e copy of t h e e n t r y of j u d g m e n t or final
r e s o l u t i o n a n d a d d r e s s e d t o a n y a p p r o p r i a t e officer
for i t s e n f o r c e m e n t .
I n a p p e a l e d c a s e s , w h e r e t h e m o t i o n for
e x e c u t i o n p e n d i n g a p p e a l i s filed i n t h e C o u r t o f
Appeals at a t i m e t h a t it is in possession of t h e
original record or the record on appeal, the
resolution granting such motion shall be
t r a n s m i t t e d t o t h e lower c o u r t from w h i c h t h e case
originated, t o g e t h e r with a certified t r u e copy of t h e
j u d g m e n t or final o r d e r to be executed, with a
d i r e c t i v e for s u c h c o u r t o f o r i g i n t o i s s u e t h e p r o p e r
w r i t for i t s e n f o r c e m e n t , (n)
NOTES
1. The first paragraph of this section provides for

the basic rule t h a t the execution of a judgment or final
resolution may be applied for only after its entry, the
659
exception being where the same is ordered to be

immediately executory. In fact, such order is not necessary
w h e r e , by p r o v i s i o n of t h e s e R u l e s or u n d e r s e t t l e d
j u r i s p r u d e n c e , t h e j u d g m e n t is immediately executory.
S e e , for i n s t a n c e , S e c . 4 of R u l e 39 a n d t h e n o t e s
thereunder.
2. The same p a r a g r a p h further declares the

f u n d a m e n t a l r e q u i r e m e n t t h a t t h e m o t i o n for such
execution may be filed only in the proper court, and the
general rule is t h a t the writ therefor may be sought in
and issued by the court from which the action originated,
t h a t is, t h e court of origin or a quo.
Thus, in actions originally commenced in the Court
of Appeals, the writ of execution shall be issued by it and
addressed to any appropriate officer for its enforcement.
To o b v i a t e a n y possible q u e s t i o n s , t h e w r i t s h a l l be
a c c o m p a n i e d by a certified t r u e copy of t h e e n t r y of
judgment, final order or resolution.
3. In c a s e s p e n d i n g on a p p e a l in t h e C o u r t of
A p p e a l s , a motion for d i s c r e t i o n a r y e x e c u t i o n of t h e
j u d g m e n t of the trial court may be filed in the Court of
Appeals provided it is in possession of t h e original record
or the record on appeal. If it g r a n t s the motion, it will not
issue a writ of execution but shall order the resolution
granting the motion therefor. A copy of such resolution
and a certified t r u e copy of the judgment or final order to
be executed shall forthwith be t r a n s m i t t e d to said trial
court.
4. Where the appealed case has been finally resolved

and the j u d g m e n t has become executory, the situation
is governed by t h e amended and amplified provisions of
Sec. 1, Rule 39.
660
RULE 52
MOTION FOR RECONSIDERATION
S e c t i o n 1. Period for filing. — A p a r t y m a y file

a m o t i o n for r e c o n s i d e r a t i o n of a j u d g m e n t or
f i n a l r e s o l u t i o n w i t h i n f i f t e e n (16) d a y s f r o m
notice thereof, with proof of service on t h e adverse
p a r t y , (n)
Sec. 2. Second motion for reconsideration. — No

s e c o n d m o t i o n for r e c o n s i d e r a t i o n o f a j u d g m e n t
or final resolution by the same party shall be
e n t e r t a i n e d , (n)
Sec. 3. Resolution of motion. — In t h e C o u r t of

A p p e a l s , a m o t i o n for r e c o n s i d e r a t i o n s h a l l be
r e s o l v e d w i t h i n n i n e t y (90) d a y s from t h e d a t e w h e n
t h e c o u r t d e c l a r e s i t s u b m i t t e d for r e s o l u t i o n , (n)
Sec. 4. Stay of execution. — T h e p e n d e n c y of a

m o t i o n for r e c o n s i d e r a t i o n filed o n t i m e a n d b y t h e
proper party shall stay the execution of the
j u d g m e n t or final resolution sought to be
r e c o n s i d e r e d u n l e s s t h e c o u r t , for g o o d r e a s o n s ,
s h a l l o t h e r w i s e d i r e c t , (n)
NOTES
1. The present Rule, which now bears the title of

"Motion for Reconsideration," contains new provisions
substantially different from and abandoning the previous
practice in the former Rule 52 which was entitled "Re-
hearing." Thus, for instance, a copy of the motion for
reconsideration m u s t be served on the adverse party,
thereby eliminating the confusion caused by Sec. 1 of the
former Rule which provided for the filing thereof ex parte.
661
The p r e s e n t Sec. 2 prohibits t h e filing of a second

motion for reconsideration while, formerly, the same may
be allowed with leave of court.
Sec. 3 p r o v i d e s a t i m e l i m i t of 90 d a y s for t h e
resolution of the motion for reconsideration reckoned from
t h e d a t e w h e n t h e s a m e i s d e c l a r e d s u b m i t t e d for
resolution, which is normally upon the filing of the last
pleading required by t h e Rules or by the court. This time
limit applies only to motions for reconsideration in the
C o u r t of A p p e a l s . It does not a p p l y to m o t i o n s for
reconsideration in the S u p r e m e Court, p u r s u a n t to the
exception in Sec. 2(b), Rule 56.
Sec. 4 of this Rule now provides t h a t while a motion

for r e c o n s i d e r a t i o n s h a l l s t a y t h e e x e c u t i o n o f t h e
j u d g m e n t or final resolution, t h e court may direct
otherwise, unlike t h e previous Rule which did not provide
for such exception.
2. As a b a c k d r o p , it will be recalled t h a t u n d e r
Sec. 1 of t h e former Rule, a second motion for recon-
sideration was allowed upon prior leave of the court. This
was modified by B.P. Blg. 129 which provided t h a t the
t h e n I n t e r m e d i a t e A p p e l l a t e C o u r t could e n t e r t a i n a
second motion for reconsideration only if the first motion
for reconsideration resulted in the reversal or substantial
modification of t h e j u d g m e n t appealed from (Sec. 11),
w h i l e i n t h e l o w e r c o u r t s o n l y o n e m o t i o n for
r e c o n s i d e r a t i o n s h a l l be allowed (Par. 4, Interim or
Transitional Rules and Guidelines). Said rules, however,
did not apply to the Supreme Court, Sandiganbayan and
Court of Tax Appeals, unless thereafter adopted by them.
Subsequently, effective July 28, 1986, Sec. 11 of B.P. Blg. 129 was amended by Executive Order No. 33 providing
t h a t in the former I n t e r m e d i a t e Appellate Court, which
was t h e r e i n renamed as the Court of Appeals, "no second
motion for reconsideration from the same party shall be
entertained" (Sec. 6). This restriction has been adopted
662
RULE 52 MOTION FOR R E C O N S I D E R A T I O N SECS. 1-4
in Sec. 2 of the present Rule. Parenthetically, the same

Sec. 6 of Executive Order No. 33 further provided t h a t
the "motion for reconsideration of its decision or final
resolution shall be resolved by the court within ninety
(90) days from the time it is submitted for resolution."
663
R U L E 63
NEW TRIAL
S e c t i o n 1. Period for filing; ground. — At a n y

time after the appeal from the lower court has
been perfected and before the Court of Appeals
l o s e s j u r i s d i c t i o n o v e r t h e c a s e , a p a r t y m a y file
a m o t i o n for a n e w t r i a l on t h e g r o u n d of n e w l y
discovered evidence which could not have been
d i s c o v e r e d p r i o r t o t h e trial i n t h e c o u r t b e l o w b y
the exercise of due diligence and which is of such a
c h a r a c t e r a s w o u l d p r o b a b l y c h a n g e t h e r e s u l t . The
motion shall be accompanied by affidavits showing
the facts c o n s t i t u t i n g the grounds therefor and the
newly discovered evidence, (la)
NOTES
1. Sec. 1 of the former Rule has been amended here

to make more specific the period for t h e filing of a motion
for new trial, i.e., at any time after the perfection of the
appeal from the j u d g m e n t or final order of the lower court
and before the Court of Appeals loses jurisdiction over
the case. The former provision reading "(b)efore a final
o r d e r or j u d g m e n t r e n d e r e d by t h e C o u r t of Appeals
becomes executory," was considered imprecise and
susceptible of misinterpretation, hence the a m e n d m e n t .
2. Rules 52 and 53 regarding motions for reconsider-

ation and new trial, in relation to Rule 45 on appeals by
certiorari from the Court of Appeals to the Supreme Court,
may now be recapitulated as follows:
a. A motion for reconsideration may be filed within
15 days from notice of the j u d g m e n t or final resolution of
the Court of Appeals.
664
RULE 53 NEW TRIAL SEC. 1
b. A motion for new trial may be filed at any time

after perfection of the appeal from the Regional Trial Court
and up to but within 15 days from service of a copy of the
judgment or final resolution of the Court of Appeals.
c. A petition for review on certiorari by the Supreme
Court may also be filed within such 15-day period from
notice of t h e j u d g m e n t or final resolution of the Court of
Appeals, unless the party files either of the aforementioned
two motions.
d. Accordingly, w i t h i n t h a t r e g l e m e n t a r y 15-day
p e r i o d , t h e a g g r i e v e d p a r t y m a y file a m o t i o n for
reconsideration; or a motion for new trial, if proper; or a
petition for review on certiorari to the Supreme Court. The
said two motions shall be filed in the Court of Appeals,
and t h e petition with t h e Supreme Court, with copies
served on the adverse party in all instances.
e. If t h e p a r t y s e a s o n a b l y files a m o t i o n for
reconsideration in the Court of Appeals, the period to
appeal is set aside and he shall have another 15 days from
receipt of the resolution of said court denying such motion
within which to appeal by certiorari. If he files a motion
for new trial, the same procedure shall apply in the event
of its denial. In both instances, the rule on the effects
of pro forma motions shall be observed.
f. If the party decides to proceed directly with an
a p p e a l by c e r t i o r a r i , he should comply w i t h all t h e
requirements of Rule 45 and file his petition, sufficient in
form a n d s u b s t a n c e , within t h e r e g l e m e n t a r y 15-day
period, or a motion for extension of t h a t period upon
compliance with Sec. 2, Rule 45. The party whose motion
for reconsideration or new t r i a l was denied and who
desires to appeal to the Supreme Court may also move for
such extended period upon the same terms, preparatory
to and for purposes of the filing of his petition.
665
Sec. 2. Hearing and orders. — T h e C o u r t of

Appeals shall consider the new evidence together
w i t h t h a t a d d u c e d a t t h e trial b e l o w , a n d m a y grant
or r e f u s e a n e w trial, or m a y m a k e s u c h o r d e r , with
n o t i c e t o b o t h p a r t i e s , a s t o t h e t a k i n g o f further
testimony, either orally in court, or by depositions,
or render such other judgment as ought to be
r e n d e r e d u p o n s u c h t e r m s a s i t m a y d e e m j u s t . (2a)
Sec. 3. Resolution of motion. — In t h e C o u r t of

A p p e a l s , a m o t i o n for n e w t r i a l s h a l l be r e s o l v e d
w i t h i n n i n e t y (90) d a y s from t h e d a t e w h e n t h e court
d e c l a r e s i t s u b m i t t e d for r e s o l u t i o n
Sec. 4. Procedure in new trial. — U n l e s s t h e court

o t h e r w i s e d i r e c t s , t h e p r o c e d u r e i n t h e n e w trial
s h a l l be t h e s a m e as t h a t g r a n t e d by a R e g i o n a l Trial
Court. (3a)
NOTES
1. J u s t like a motion for reconsideration in the Court

of Appeals as provided in Sec. 3 of Rule 52, the same time
limit for resolution of a motion for new trial therein is
provided for by Sec. 3 of this Rule, but this provision does
not apply to the S u p r e m e Court, since the provisions of
Rule 53 a r e not applicable to cases therein. See notes
u n d e r Secs. 2 and 4 of Rule 56.
2. Regarding Sec. 4 of this Rule, refer to Rule 37,

especially the amended and additional provisions
introduced t h e r e i n by these revised Rules. This section
m a i n t a i n s the same reservation t h a t the Court of Appeals
may direct such d e p a r t u r e from the procedure provided in
Rule 37 where adherence thereto may result in injustice
in cases pending before it or in the adjudication thereof.
3. In the trial courts, a second motion for new trial

may be filed where the ground therefor did not exist at
666
RULE 53 NEW TRIAL S E C S . 2-4
the time the first motion for new trial was filed, e.g., where
the first motion was based on fraud and the second is based
on newly discovered evidence t h e requisites for which
concurred only after the filing of the first motion. This
would not be possible in the Court of Appeals where the
only ground for a motion for new trial is newly discovered
evidence.
667
RULE 54
INTERNAL BUSINESS
S e c t i o n 1. Distribution of cases among divisions. —

All t h e c a s e s o f t h e Court o f A p p e a l s s h a l l b e allotted
a m o n g t h e d i f f e r e n t d i v i s i o n s t h e r e o f for h e a r i n g
a n d d e c i s i o n . T h e Court of A p p e a l s , s i t t i n g en banc,
shall m a k e proper orders or rules to govern the
a l l o t m e n t o f c a s e s a m o n g t h e d i f f e r e n t d i v i s i o n s , the
constitution of such divisions, the regular rotation
of J u s t i c e s a m o n g them, the filling of vacancies
o c c u r r i n g t h e r e i n , a n d o t h e r m a t t e r s r e l a t i n g t o the
business of the court; and such rules shall continue
in force u n t i l r e p e a l e d or a l t e r e d by it or by t h e
S u p r e m e Court, ( l a )
Sec. 2. Quorum of the court. — A m a j o r i t y of t h e

actual members of the court shall constitute a
q u o r u m for its s e s s i o n s en banc. T h r e e m e m b e r s
s h a l l c o n s t i t u t e a q u o r u m for t h e s e s s i o n s o f a
division. The affirmative votes of the majority of
the m e m b e r s present shall be necessary to pass a
r e s o l u t i o n of t h e c o u r t en banc. T h e a f f i r m a t i v e
v o t e s of three m e m b e r s of a d i v i s i o n shall be
n e c e s s a r y for t h e p r o n o u n c e m e n t of a j u d g m e n t of
final r e s o l u t i o n , w h i c h shall be r e a c h e d in
consultation before the writing of the opinion by
a n y m e m b e r of t h e d i v i s i o n . (Sec. 11, first par. of
BP Blg. 129, as a m e n d e d by S e c . 6 of EO 33). (3a)
NOTES
1. Sec. 1 is a reproduction of the same section of the

former Rule, and bears noting for its clarification of the
m a t t e r s t h a t are handled by the Court of Appeals sitting
either en banc or in divisions.
668
RULE 54 INTERNAL BUSINESS SECS. 1-2
2. As indicated therein, Sec. 2 was t a k e n from the

amendatory Sec. 6 of Executive Order No. 33, which is
quoted under Note 2 of Sec. 3, Rule 51.
3. Sec. 2 of t h e former Rule, which provided rules
for t h e period within which a case shall be decided or
terminated, has been eliminated in these revised Rules
s i n c e s u c h m a t t e r s a r e now p r o v i d e d for i n t h e
Constitution.
669
R U L E 56
PUBLICATION OF JUDGMENTS
AND FINAL RESOLUTIONS
S e c t i o n 1. Publication. — T h e j u d g m e n t s a n d
final resolutions of the court shall be published in
t h e Official G a z e t t e a n d i n t h e R e p o r t s officially
authorized by the court in the language in which
they h a v e been originally written, together with the
syllabi therefor prepared by the reporter in
c o n s u l t a t i o n w i t h t h e w r i t e r s thereof. M e m o r a n d a
o f all o t h e r j u d g m e n t s a n d final r e s o l u t i o n s not s o
p u b l i s h e d shall be made by the reporter and
p u b l i s h e d i n t h e Official G a z e t t e a n d t h e a u t h o r i z e d
reports, (la)
NOTE
1. Sec. 1, C A . 638 provides for t h e publication in

the Official Gazette of only such decisions or abstracts of
decisions of t h e S u p r e m e Court and the Court of Appeals
as may be deemed by said courts of sufficient importance
to be so published.
Sec. 2. Preparation of opinions for publication. —

The reporter shall prepare and publish with each
r e p o r t e d j u d g m e n t a n d final r e s o l u t i o n a c o n c i s e
s y n o p s i s of t h e f a c t s n e c e s s a r y for a c l e a r
understanding of the case, the names of counsel,
the material and controverted points involved, the
authorities cited therein, and a syllabus which
s h a l l be c o n f i n e d to p o i n t s of law. (Sec. 22a,
R.A. No. 296). (n)
670
RULE 55 PUBLICATION OF J U D G M E N T S SEC 2
AND FINAL RESOLUTIONS
NOTES
1. The syllabus is an abstract, a headnote, or a note
prefixed to the report of an adjudged case, containing an
epitome or brief s t a t e m e n t of the rulings of the court upon
the points decided in t h e case (Kuhn vs. Coal Co., 215
U.S. 356, 30 S. Ct. 140, 54 L.Ed. 228). The weight of its
authority in the different s t a t e s depends on whether the
syllabus should contain also findings of fact or, like our
practice, shall be confined to points of law. The better
rule, in our experience, should be t h a t ordinarily where a
headnote, even though prepared by the court, is given no
special force by s t a t u t e or rule of court, the opinion is to
be looked to for the original and authentic s t a t e m e n t on
the grounds of decision (Burbank vs. Ernst, 232 U.S. 162,
34 S. Ct. 299, 58 L. Ed. 551).
2. Thus, for instance and by way of illustration, in

Libi, et al. vs. Intermediate Appellate Court, et al. (G.R.
No. 70890, Sept. 18, 1992), a controversy arose as to
whether the liability of parents for the civil liability arising
from a felony committed by their minor son is primary or
s u b s i d i a r y . T h e r e s p o n d e n t court d e c l a r e d it to be
subsidiary, relying on the supposed holding to t h a t effect
in Fuellas vs. Cadano, et al. (L-14409, Oct. 31, 1961).
Rejecting such holding, and after discussing contrary
doctrines in o t h e r cases, t h e S u p r e m e Court f u r t h e r
pointedly observed:
"Also, coming back to respondent court's reliance
on Fuellas in its decision in the present case, it is not
exactly accurate to say t h a t Fuellas provided for
subsidiary liability of the parents therein. A careful
scrutiny shows t h a t what respondent court quoted
verbatim in its decision now on appeal in the present
case, and which it a t t r i b u t e d to Fuellas, was the
syllabus on the law report of said case which spoke of
'subsidiary' liability. However, such categorization
does not specifically appear in the text of the decision
671
in Fuellas. x x x"
Sec. 3. General make-up of volumes. — T h e pub-

l i s h e d d e c i s i o n s a n d f i n a l r e s o l u t i o n s o f t h e Supreme
Court shall be called "Philippine Reports," while
t h o s e o f t h e C o u r t o f A p p e a l s s h a l l b e k n o w n a s the
"Court o f A p p e a l s R e p o r t s . " E a c h v o l u m e t h e r e o f
s h a l l c o n t a i n a t a b l e o f t h e c a s e s r e p o r t e d a n d the
cases cited in the opinions, with a complete
a l p h a b e t i c a l i n d e x of t h e subject m a t t e r s of the
volume. It shall consist of not less than seven
h u n d r e d p a g e s p r i n t e d u p o n g o o d paper, w e l l bound
and n u m b e r e d c o n s e c u t i v e l y in the order of the
v o l u m e p u b l i s h e d . ( S e c . 23a, R.A. No. 296) (n)
NOTES
1. The official reports of court decisions which are

published by the Government and, therefore, constitute
p r i m a r y a u t h o r i t y thereon, a r e those in the Philippine
Reports, Official Gazette and Court of Appeals Reports,
all of which a r e authorized by law.
2. There are a n u m b e r of privately published reports
of decisions and resolutions of our appellate courts which,
although not s t a t u t o r i l y sanctioned, have acquired
general acceptance with at least one duly endorsed by the
S u p r e m e Court a n d recognized by being indicated as the
source of citations of cases in its decisions.
While such publications render the service which the
g o v e r n m e n t p r i n t i n g office c a n n o t cope w i t h , being
unofficial publications the authority thereof would best
be subserved by further indicating the case number and
date of promulgation of the case when cited in a decision.
Of course, in case of conflict or doubt, the official copy as
reported in the government publications or on file with
the Office of the Court Reporter should be consulted and
would prevail.
672
PROCEDURE IN THE SUPREME COURT
RULE 56
A. ORIGINAL CASES
S e c t i o n 1. Original cases cognizable. — Only peti-

t i o n s for c e r t i o r a r i , p r o h i b i t i o n , m a n d a m u s , q u o
warranto, habeas corpus, disciplinary proceedings
against members of the judiciary and attorneys,
and cases affecting ambassadors, other public
m i n i s t e r s a n d c o n s u l s m a y b e filed o r i g i n a l l y i n t h e
S u p r e m e Court, (n)
NOTES
1. The original jurisdiction of the Supreme Court

over the cases or proceedings now specifically set out in
this new provision is based on the provisions of Art. VIII
of t h e 1987 C o n s t i t u t i o n , p r i n c i p a l l y Sec. 5(1) a n d
complemented by Secs. 5(5), 6 and 11.
2. Sec. 1 of the former Rule 56 provided t h a t "(u)nless
otherwise provided by the Constitution or by law, the
procedure in the Supreme Court in original as well as in
appealed cases, shall be the same as in t h e Court of
Appeals, except as hereinafter provided." Although this
former provision has not been reproduced, t h e same
principle has been substantially observed in the present
Rule which now explains the procedure in the Supreme
Court more in detail.
Sec. 2. Rules applicable. — T h e p r o c e d u r e in

original c a s e s for certiorari, prohibition, m a n d a m u s ,
quo warranto and habeas corpus shall be in
accordance with the applicable provisions of the
C o n s t i t u t i o n , l a w s , and Rules 46, 48, 49, 51, 62 and
673
this Rule, subject to the following provisions:

(a) All r e f e r e n c e s in s a i d R u l e s to t h e Court of
Appeals shall be understood to also apply to the
S u p r e m e Court;
(b) T h e p o r t i o n s o f s a i d R u l e s d e a l i n g strictly
w i t h a n d s p e c i f i c a l l y i n t e n d e d for a p p e a l e d c a s e s i n
t h e C o u r t o f A p p e a l s s h a l l n o t b e a p p l i c a b l e ; and
(c) E i g h t e e n (18) c l e a r l y l e g i b l e c o p i e s o f t h e
p e t i t i o n s h a l l b e filed, t o g e t h e r w i t h p r o o f o f s e r v i c e
o n all a d v e r s e p a r t i e s .
T h e p r o c e e d i n g s for d i s c i p l i n a r y a c t i o n a g a i n s t
members of the judiciary shall be governed by the
laws and Rules prescribed therefor, and those
a g a i n s t a t t o r n e y s b y R u l e 139-B, a s a m e n d e d , (n)
NOTES
1. Expressly made applicable to original actions in

t h e S u p r e m e Court a r e t h e following Rules which are of
p r i m a r y governance in t h e Court of Appeals, viz.: Rule 46
( o r i g i n a l a c t i o n s i n t h e C o u r t o f A p p e a l s ) , Rule 4 8
(preliminary conference), Rule 49 (oral a r g u m e n t ) , Rule
51 (judgment), a n d Rule 52 (motion for reconsideration).
However, such portions thereof which deal strictly with
and a r e specifically i n t e n d e d for appealed cases in the
Court of Appeals a r e not applicable.
2. It will be noted t h a t while, except for its Sec. 3,

Rule 52 on motions for reconsideration is applicable to both
the Court of Appeals and t h e Supreme Court, Rule 53 on
motions for new t r i a l is observed in the Court of Appeals
but is not made applicable to and cannot be availed of in
t h e S u p r e m e Court in civil cases therein.
The a p p a r e n t reason for this is t h a t while the Court
of Appeals can e n t e r t a i n and g r a n t a motion for new trial
on the ground of newly discovered evidence, this is justified
674
by the fact t h a t it can resolve factual questions and, for

t h a t matter, can conduct hearings for t h a t purpose. The
Supreme Court, on the other hand, cannot e n t e r t a i n such
motions as only questions of fact are involved therein and
it is not a t r i e r of facts. Besides, the findings of fact of the
Court of Appeals are generally binding on the Supreme
Court (see Goduco vs. CA, et al., L-17647, June 16, 1965).
3. However, in criminal cases, a different t r e a t m e n t
appears to have been adopted. Thus, in a criminal case
on appeal in the Supreme Court from a decision of the
Sandiganbayan, the Supreme Court ordered a new trial
on t h e basis of two affidavits exculpating the appellant
and which were submitted to it in a manifestation which
it decided to t r e a t as a motion for new t r i a l in t h e
interest of justice (Helmuth vs. People, G.R. No. 57068,
Mar. 15, 1982). Also, in People vs. Amparado (L-48656,
Dec. 21, 1987), t h e Supreme Court set aside its judgment
and remanded the case to the lower court for new trial on
the ground of newly discovered evidence.
It is believed t h a t these two cases were so treated only
on equitable considerations but may not be considered as
creating an exceptive rule against motions for new trial
on factual issues being sought in the Supreme Court.
4. Technically, evidence not submitted before the
lower court may not be considered by the appellate court.
However, where the testimonies in the proceedings in the
prosecutor's office were duly transcribed and not impugned
by t h e p a r t i e s , a n d were considered by t h e Court of
Appeals, the remand of the case to the trial court would
result in further delay. Accordingly, the Supreme Court
considered t h e questioned evidence together with t h e
evidence adduced in the trial court in the adjudication of
the case (Regalario vs. NWFinance Corp., et al., L-26243,
Sept. 30, 1982).
675
B. A P P E A L E D CASES
S e c . 3. Mode of appeal. — An a p p e a l to t h e
S u p r e m e C o u r t m a y be t a k e n o n l y by a p e t i t i o n for
review on certiorari, except in criminal cases where
t h e p e n a l t y i m p o s e d is d e a t h , recluaion perpetua or
life i m p r i s o n m e n t , (n)
NOTE
1. R u l e s 41 a n d 42 of t h e 1964 R u l e s of Court,
which prescribed a common mode of appeal to the Court
of Appeals and t h e S u p r e m e Court, were superseded by
R.A. 5 4 3 3 , R.A. 5440 a n d , f u r t h e r , by B.P. Blg. 129.
Appeals to t h e S u p r e m e Court in civil cases may be made
only by petition for review on certiorari from the Court of
Appeals (Rule 45) a n d from t h e Regional Trial Courts
(Rule 45 in relation to Sec. 17, R.A. 296). Even in criminal
cases, appeal to t h e S u p r e m e Court shall be by petition
for review on certiorari, except where the penalty imposed
by t h e lower court is d e a t h , reclusion perpetua or life
i m p r i s o n m e n t . The d e a t h p e n a l t y s h a l l be subject to
automatic review and, in t h e l a t t e r two cases, t h e same
may be elevated by ordinary a p p e a l (see Note 1 under
Sec. 1, Rule 45, and Note 11 u n d e r Secs. 1 to 3, Rule 122).
Sec. 4. Procedure. — T h e a p p e a l s h a l l be
governed by and disposed of in accordance with the
applicable provisions of the Constitution, laws,
R u l e s 45, 48, s e c t i o n s 1, 2, a n d 5 to 11 of R u l e 51, 52
a n d t h i s R u l e , (n)
NOTE
1. Secs. 3 and 4 of Rule 51 a r e not applicable to

appellate proceedings in t h e Supreme Court as the first
refers to the quorum and procedure for voting which is
peculiar to the Court of Appeals; and t h e second is with
676
RULE 56 APPEALED CASES SEC. 5
regard to the disposition of the case by said court which

includes the granting of a new trial, a power which is not
exercised by the Supreme Court in civil cases as explained
under Sec. 3 of this Rule. For the same reason, Rule 53
on motions for new trial is not mentioned or included in
this section.
Sec. 5. Grounds for dismissal of appeal. — T h e

a p p e a l m a y be d i s m i s s e d motu proprio or on m o t i o n
of the respondent on the following grounds:
(a) F a i l u r e t o t a k e t h e a p p e a l w i t h i n t h e r e g l e -
mentary period;
(b) Lack of m e r i t in t h e p e t i t i o n ;
(c) F a i l u r e t o p a y t h e r e q u i s i t e d o c k e t fee a n d
o t h e r l a w f u l f e e s or to m a k e a d e p o s i t for c o s t s ;
(d) F a i l u r e to c o m p l y w i t h t h e r e q u i r e m e n t s
regarding proof of service and contents of and the
documents which should accompany the petitions;
(e) F a i l u r e to c o m p l y w i t h a n y circular, d i r e c -
t i v e o r o r d e r o f t h e S u p r e m e Court w i t h o u t j u s t i -
fiable c a u s e ;
(f) Error in t h e c h o i c e or m o d e of appeal; a n d
(g) T h e fact t h a t t h e c a s e is not a p p e a l a b l e to
t h e S u p r e m e Court, (n)
NOTES
1. Among t h e sources of t h e foregoing g r o u n d s

for d i s m i s s a l of a p p e a l in t h e C o u r t of A p p e a l s a r e
Revised Circular No. 1-88, Circular No. 2-90 and Circular
No. 19-91 of the Supreme Court.
2. Unlike the former practice where deposit for costs
shall be made p u r s u a n t to a resolution therefor upon the
appeal being given due course, costs are now required to
677
be deposited upon t h e filing of the petition. Hence, Par.

(c) includes failure to make such deposit as a ground for
the dismissal of t h e appeal.
3. T h e g r o u n d s for d i s m i s s a l of a p p e a l s in t h e
S u p r e m e Court vary in a n u m b e r of respects from those
in t h e Court of Appeals (Rule 50) since t h e appeal in civil
cases to both courts differ in the mode and requirements
for perfecting t h e appeal, as well as the pleadings and
proceedings required thereafter.
Sec. 6. Disposition of improper appeal. — E x c e p t as

p r o v i d e d i n s e c t i o n 3 , R u l e 122 r e g a r d i n g a p p e a l s
in criminal cases where the penalty imposed is
d e a t h , reclusion perpetua or life i m p r i s o n m e n t , an
appeal t a k e n to the Supreme Court by notice of
appeal shall be dismissed.
An appeal by certiorari taken to the Supreme
Court from the Regional Trial Court submitting
i s s u e s of fact may be referred to the Court of
A p p e a l s for d e c i s i o n o r a p p r o p r i a t e a c t i o n . T h e
d e t e r m i n a t i o n of the Supreme Court on w h e t h e r or
n o t i s s u e s o f fact a r e i n v o l v e d s h a l l b e final, (n)
NOTES
1. This section was t a k e n from Circular No. 2-90 of

the S u p r e m e Court, which took effect on March 9, 1990,
and was dictated by the reasons explained in Note 1 under
Sec. 3 of this Rule.
2. The first p a r a g r a p h refers to an erroneous mode
of appeal, t h a t is, the appeal which does not involve the
d e a t h penalty or reclusion perpetua or life imprisonment
is elevated to t h e S u p r e m e Court by notice of a p p e a l
instead of a petition for review on certiorari as provided
in Sec. 3 of this Rule. In such case, the appeal shall be
dismissed outright.
678
3. The second p a r a g r a p h contemplates the situation

wherein the appeal was correctly taken on a petition for
review on certiorari but factual issues are invoked for
resolution, contrary to the provisions of Rule 45 t h a t only
questions of law may be raised therein. In this instance,
the case may be referred to the Court of Appeals, although
the S u p r e m e Court may also dismiss the appeal. The
more liberal consideration is presumably due to the fact
t h a t there have been jurisprudential exceptions laid down
by the Supreme Court to the rule t h a t only questions of
law may be raised in appeals by certiorari.
T h i s p a r a g r a p h w a s a l s o t a k e n from C i r c u l a r
No. 2-90, with the amplification t h a t the referral to the
Court of Appeals shall be "for decision or a p p r o p r i a t e
action," and t h a t the determination of the Supreme Court
as to whether or not issues of fact are involved is final.
Sec. 7. Procedure if opinion is equally divided. —

W h e r e t h e c o u r t en banc is e q u a l l y d i v i d e d in
o p i n i o n , or t h e n e c e s s a r y majority c a n n o t be had,
t h e c a s e s h a l l a g a i n be d e l i b e r a t e d on, a n d if after
such deliberation no decision is reached, the
original action commenced in the court shall be
d i s m i s s e d ; i n a p p e a l e d c a s e s , t h e j u d g m e n t o r order
a p p e a l e d from shall stand affirmed; and on all
i n c i d e n t a l m a t t e r s , t h e p e t i t i o n or m o t i o n s h a l l be
d e n i e d . (11a)
NOTES
1. This section was taken, with minor changes, from

Sec. 11 of the former Rule 56, which, in turn, was based
on t h e p r o v i s i o n s of Sec. 11(2), A r t . X of t h e 1973
Constitution. That provision of the 1973 Constitution
was not adopted in the 1987 Constitution, hence this
section does not have a constitutional basis.
679
2. On this score, it would be advisable to reproduce

herein some relevant provisions of Art. VIII of the 1987
Constitution for ready reference:
"Sec. 4. (1) The Supreme Court shall be com-
posed of a Chief J u s t i c e a n d f o u r t e e n Associate
J u s t i c e s . It may sit en banc or in its discretion, in
d i v i s i o n s of t h r e e , five or s e v e n M e m b e r s . Any
vacancy shall be filled within ninety days from the
occurrence thereof.
(2) All cases involving t h e constitutionality of
a t r e a t y , i n t e r n a t i o n a l or executive agreement, or
law, which shall be h e a r d by t h e Supreme Court en
banc, and all other cases which u n d e r the Rules of
Court a r e required to be h e a r d en banc, including
those involving t h e constitutionality, application, or
o p e r a t i o n of p r e s i d e n t i a l d e c r e e s , p r o c l a m a t i o n s ,
orders, instructions, ordinances, and other regula-
t i o n s s h a l l be decided w i t h t h e c o n c u r r e n c e of a
majority of t h e Members who actually took p a r t in
t h e deliberations on t h e issues in t h e case and voted
thereon.
(3) Cases or m a t t e r s h e a r d by a division shall
be decided or resolved w i t h t h e concurrence of a
majority of t h e Members who actually took p a r t in
t h e deliberations on t h e issues in t h e case and voted
thereon, and in no case without the concurrence of
at least t h r e e of such Members. When the required
n u m b e r is not obtained, t h e case shall be decided en
banc: Provided, T h a t no doctrine or principle of law
laid down by t h e court in a decision rendered en banc
or in division may be modified or reversed except by
t h e court sitting en banc.
X X X
Sec. 13. The conclusions of the Supreme Court

in any case submitted to it for decision en banc or in
division shall be reached in consultation before the
680
case is assigned to a Member for the writing of the

opinion of the Court. A certification to this effect
signed by the Chief Justice shall be issued and a copy
thereof attached to the record of the case and served
upon t h e parties. Any Member who took no part,
dissented, or abstained from a decision or resolution
must s t a t e the reason therefor. The same require-
ments shall be observed by all lower collegiate courts.
Sec. 14. No decision shall be rendered by any
court without expressing therein clearly and distinctly
the facts and the law on which it is based.
No petition for review or motion for reconsider-
ation of a decision of the court shall be refused due
course or denied w i t h o u t s t a t i n g t h e legal basis
therefor.
Sec. 15. (1) All cases or m a t t e r s filed after the
effectivity of this Constitution must be decided or
resolved within twenty-four months from date of
s u b m i s s i o n for t h e S u p r e m e Court, a n d , u n l e s s
reduced by the Supreme Court, twelve months for
all lower collegiate courts, and three months for all
other lower courts.
(2) A case or m a t t e r shall be deemed submitted
for resolution upon the filing of the last pleading,
brief, or memorandum required by the Rules of Court
or by the court itself.
(3) Upon the expiration of the corresponding
period, a certification to this effect signed by the Chief
J u s t i c e or t h e presiding judge shall forthwith be
issued and a copy thereof attached to the record of
the case or matter, and served upon the parties. The
certification shall state why a decision has not been
rendered or issued within said period.
(4) Despite the expiration of the applicable
mandatory period, the court, without prejudice to
681
such responsibility as m a y have been incurred in

consequence thereof, shall decide or resolve the case
o r m a t t e r s u b m i t t e d t h e r e t o for d e t e r m i n a t i o n ,
w i t h o u t further delay."
F u r t h e r m o r e , Art. XVIII, the Transitory Provisions
thereof, r e q u i r e s inter alia t h a t :
"Sec. 12. The S u p r e m e Court shall, within one
y e a r after t h e ratification of t h i s Constitution, adopt
a s y s t e m a t i c p l a n to expedite t h e decision or
resolution of cases or m a t t e r s pending in the Supreme
Court or t h e lower courts prior to t h e effectivity of
t h i s Constitution. A similar p l a n shall be adopted
for all special courts and quasi-judicial bodies.
Sec. 13. The legal effect of t h e lapse, before the
ratification of t h i s C o n s t i t u t i o n , of t h e applicable
period for t h e decision or resolution of t h e cases or
m a t t e r s s u b m i t t e d for adjudication by t h e courts,
shall be d e t e r m i n e d by t h e S u p r e m e Court as soon
as practicable.
Sec. 14. The provisions of p a r a g r a p h s (3) and
(4), Section 15 of Article VIII of this Constitution shall
apply to cases or m a t t e r s filed before t h e ratification
of this Constitution, when the applicable period lapses
after such ratification."
3. The provision of t h e 1987 Constitution requiring
a certification by t h e Chief J u s t i c e t h a t t h e conclusions of
t h e Court were reached in consultation before the case
was assigned to a m e m b e r for the writing of the opinion
(Sec. 13, Art. VIII) refers to decisions in judicial, not
a d m i n i s t r a t i v e , cases. Also, in a per curiam decision in
such administrative cases, it being an opinion of the Court
as a whole and t h e r e is no ponente although any member
of t h e Court may be assigned to write t h e draft, a formal
certification is not required. F u r t h e r m o r e , t h e consti-
t u t i o n a l m a n d a t e t h a t no motion for reconsideration of a
682
decision of the Court shall be denied without stating the

legal basis therefor does not apply to an administrative
case t h e r e i n (Prudential Bank vs. Castro, et al., Adm.
Case No. 2756, Mar. 15, 1988).
4. The Supreme Court is clothed with ample author-

ity to review m a t t e r s , even if they are not assigned as
errors on appeal, if it finds t h a t their consideration is
necessary in a r r i v i n g at a j u s t decision of t h e case. It
may consider an unassigned error closely related to an
error properly assigned or upon which the determination
of the question properly assigned is dependent.
F u r t h e r m o r e , where the Court is in a position to resolve
the dispute based on the records before it, it may resolve
the action on the merits in the public interest and for the
expeditious administration of justice, such as where the
ends of justice would not be subserved by the remand of
the case (Roman Catholic Archbishop of Manila, et al. vs.
CA, et al., G.R. No. 77425, June 19, 1991). This doctrine
is now embodied in Sec. 8, Rule 51.
5. In People vs. Jabinal (L-30061, Feb. 27, 1974),

the Supreme Court emphasized t h a t its interpretation
upon a law constitutes, in a way, a part of the law as of
the day t h a t law was originally passed, since its
construction merely establishes the contemporaneous
legislative i n t e n t which t h a t law intends to effectuate.
T h u s , A r t . 8 of t h e Civil Code provides t h a t judicial
decisions applying or interpreting the laws or the
Constitution shall form a p a r t of the legal system.
It also clarified t h a t when its doctrine is subsequently
overruled and a different view is adopted, the new doctrine
should be applied prospectively and should not apply to
parties who had relied on the old doctrine and acted on
the faith thereof.
683
PROVISIONAL REMEDIES
1. T h e r e v i s e d R u l e s of C o u r t p r o v i d e for t h e
p r o v i s i o n a l r e m e d i e s of p r e l i m i n a r y a t t a c h m e n t , pre-
liminary injunction, receivership, replevin and support
pendente lite. Contempt, which u n d e r the old Rules was
also considered a provisional remedy, is now classified as
a special civil action.
2. Provisional remedies, also known as ancillary or

a u x i l i a r y r e m e d i e s , a r e w r i t s a n d processes available
during t h e pendency of the action which may be resorted
to by a litigant to preserve and protect certain rights and
i n t e r e s t s t h e r e i n pending rendition, and for purposes of
the u l t i m a t e effects, of a final j u d g m e n t in t h e case. They
are provisional because they constitute temporary
m e a s u r e s availed of during the pendency of the action,
and they are ancillary because they are mere incidents in
and are d e p e n d e n t upon t h e result of the main action.
3. Prior to the operational effectivity of B.P. Blg. 129,

inferior courts had jurisdiction to issue writs of preliminary
a t t a c h m e n t and replevin (Sec. 88, R.A. 296) where the
main case was within their jurisdiction, but the same could
be enforced outside the province only with the approval
of the former Court of First Instance (Sec. 4, Rule 133),
except those issued by the t h e n City Courts wherein such
certification was not required (Sec. 4, R.A. 5967). Inferior
courts could also issue writs of preliminary injunction in
forcible e n t r y cases (Sec. 88, R.A. 296; Sec. 3, Rule 70;
Art. 539, Civil Code). In other cases, only t h e then City
Courts and municipal courts of the capitals of provinces
a n d s u b - p r o v i n c e s could i s s u e w r i t s o f p r e l i m i n a r y
injunction but only in the absence of t h e District Judge
(Sec. 88, R.A. 296). Also, Rule 61 (support pendente lite)
was made applicable to inferior courts (Sec. 19, Rule 5).
684
RULE 56 PROVISIONAL REMEDIES SEC. 5
The former City Courts and the municipal courts of the

capitals of provinces and sub-provinces could appoint
receivers in the absence of the District Judge (Sec. 88,
R.A. 296).
4. U n d e r t h e p r e s e n t legislation and provided the

main action is within their jurisdiction, all inferior courts
can grant all appropriate provisional remedies, including
the appointment of receivers, with the writ of preliminary
injunction being now available in either forcible entry or
unlawful detainer cases. The enforcement of said writs
outside the territorial jurisdiction of the inferior court no
longer requires t h e approval of the Regional Trial Court.
It should be noted, however, t h a t while support pendente
lite was supposedly available in the inferior courts by force
of Sec. 19 of t h e n Rule 5, nevertheless it had been held
t h a t the inferior courts could not grant the same since the
m a i n case w h e r e i n said provisional remedy could be
involved was within the jurisdiction of the former Courts
of First Instance (Baito vs. Sarmiento, 109 Phil. 148). It
is submitted t h a t the Baito doctrine still applies since B.P. Blg. 129 also requires t h a t the main case should be within
the jurisdiction of the inferior court in order t h a t it may
grant any of the aforesaid provisional remedies.
F u r t h e r m o r e , as h e r e t o f o r e e x p l a i n e d , Rule 5 w a s
expressly repealed by Par. 3 of the Interim or Transitional
Rules and Guidelines.
5. The present Rules are, further, diverse on when

the aforesaid provisional remedies are available.
Preliminary attachment and preliminary injunction may
be sought at any stage of the action but before the entry
of final judgment in the case. A petition for receivership
may be filed at any stage of the action or proceeding and
even after final judgment therein in order to preserve
the property involved or to aid execution or otherwise to
carry the judgment into effect. A writ of replevin must
be applied for before the defendant files his answer.
685
Support pendente lite may be sought at any stage of the

action, and even for t h e first time on appeal provided the
basis or propriety thereof was established at the trial, but
obviously before t h e final j u d g m e n t in said case on appeal.
6. In p r e l i m i n a r y a t t a c h m e n t a n d in preliminary
injunction, t h e a m o u n t of t h e bond to be posted by the
applicant is addressed to t h e sound discretion of the court.
In receivership, t h e bond as fixed by t h e court is now
a l w a y s r e q u i r e d of t h e p e t i t i o n e r , w h e t h e r or not the
a p p o i n t m e n t of a receiver has been applied for ex parte.
In replevin, t h e bond to be posted by t h e applicant is in
an a m o u n t double t h e value of t h e personal property to
be seized. In applications for support pendente lite, no
bond is generally required from the applicant.
7. In t h i s regard, t h e Supreme Court has resolved

t h a t effective S e p t e m b e r 1, 2003, a n d unless and until
the court directs otherwise, t h e lifetime or duration of the
effectivity of any bond issued in civil actions or proceedings
or in any incident t h e r e i n shall be from its approval by
the court until t h e action or proceeding is finally decided,
resolved or t e r m i n a t e d . The condition m u s t be incor-
porated in t h e contract or a g r e e m e n t between the party
who procured the bond and the s u r e t y or bonding
company, and such contract or agreement shall be
submitted to t h e court for approval. The same conditions
shall be deemed incorporated in t h e contract or agreement
and shall bind t h e p a r t i e s notwithstanding their failure
to expressly s t a t e t h e same t h e r e i n .
The surety or bonding company shall notify the court
concerned and the p a r t i e s to t h e action or proceedings of
any act, event or circumstance t h a t may affect its business
or operations. The notice, which shall be given within 10
days from the occurrence of the act, event or circumstance,
s h a l l have as a n n e x e s t h e r e t o certified t r u e copies or
a u t h e n t i c a t e d documents evidencing the same act, event
or circumstance (A.M. No. 03-03-18-SC, Aug. 5, 2003).
686
RULE 56 PROVISIONAL REMEDIES SEC. 6
Such bonds are also involved in execution pending

appeal and in special proceedings such as appointment of
an administrator, executor, guardian or t r u s t e e .
8. As hereinbefore pointed out, the Supreme Court
approved the Rule on Search and Seizure in Civil Actions
for Infringement of Intellectual Property Rights in its
resolution of J a n u a r y 22, 2002 in A.M. No. 02-1-06-SC
(see Appendix Z). Its provisions may serve to supplement
the corresponding provisional remedy in the limited type
of civil actions to which it is applicable.
687
RULE 57
PRELIMINARY ATTACHMENT
S e c t i o n 1. Grounds upon which attachment may

issue. — At t h e c o m m e n c e m e n t of t h e a c t i o n or at
a n y t i m e before e n t r y of j u d g m e n t , a plaintiff or any
proper party may have the property of the adverse
p a r t y a t t a c h e d a s s e c u r i t y for t h e s a t i s f a c t i o n o f
a n y j u d g m e n t t h a t m a y b e r e c o v e r e d i n t h e follow-
ing cases:
(a) In an a c t i o n for t h e r e c o v e r y of a specified
amount of money or damages, other t h a n moral and
e x e m p l a r y , on a c a u s e of a c t i o n a r i s i n g from law,
contract, quasi-contract, delict or quasi-delict
a g a i n s t a p a r t y w h o i s a b o u t t o d e p a r t from t h e
Philippines with intent to defraud his creditors;
(b) I n a n a c t i o n f o r m o n e y o r p r o p e r t y
embezzled or fraudulently misapplied or converted
to h i s o w n u s e by a p u b l i c officer, or an officer of a
c o r p o r a t i o n , o r a n a t t o r n e y , factor, b r o k e r , a g e n t ,
or c l e r k , in t h e c o u r s e of h i s e m p l o y m e n t as such,
or by a n y o t h e r p e r s o n in a f i d u c i a r y c a p a c i t y , or
for a willful v i o l a t i o n of d u t y ;
(c) In an a c t i o n to r e c o v e r t h e p o s s e s s i o n of
property unjustly or fraudulently taken, detained
or converted, when the property, or any part
thereof, h a s b e e n c o n c e a l e d , r e m o v e d o r d i s p o s e d
of to p r e v e n t its being found or t a k e n by the
applicant or an authorized person;
(d) In an a c t i o n a g a i n s t a p a r t y w h o h a s been
guilty of a fraud in c o n t r a c t i n g t h e d e b t or
incurring the obligation upon which the action is
b r o u g h t , o r i n t h e p e r f o r m a n c e thereof;
688
RULE 57 PRELIMINARY ATTACHMENT SEC.
(e) I n a n a c t i o n a g a i n s t a p a r t y w h o h a s
r e m o v e d o r d i s p o s e d o f h i s property, o r i s a b o u t t o
d o so, w i t h i n t e n t t o d e f r a u d h i s c r e d i t o r s ;
(f) In an a c t i o n a g a i n s t a party w h o d o e s not
r e s i d e i n t h e P h i l i p p i n e s , o r o n w h o m s u m m o n s may
be s e r v e d by p u b l i c a t i o n , ( l a )
NOTES
1. The former Sec. 1 of Rule 57 has been amended

to make some of its provisions more specific. Thus, the
last time w h e n a writ of preliminary a t t a c h m e n t may
be s o u g h t s h o u l d be before entry of judgment; Par.
(a) r e q u i r e s t h a t t h e action should be for recovery of
specified sums, other t h a n moral or exemplary damages,
arising from any recognized legal source of obligations; in
P a r . (b), t h e p r o p e r t y m u s t h a v e b e e n u n j u s t l y o r
fraudulently taken, detained or converted; and in Par. (d),
t h e fraud may have been committed in i n c u r r i n g t h e
obligation or in the performance thereof, and the act of
concealing or disposing of the property has been deleted
since t h a t is already contemplated in Par. (c).
2. The former Sec. 1(a) of this Rule referred to an
"implied" contract, a term also used in Sec. 5 of Rule 86.
This ambiguous t e r m has been eliminated by the
clarification in its p r e s e n t counterpart t h a t the action
contemplated therein includes one arising from law or
quasi-contract.
The former Sec. 1(d) referred to fraud in contract-
ing t h e o b l i g a t i o n (dolo causante) a n d not in t h e
performance thereof (dolo incidente), hence the issuance
of bouncing checks in payment of the obligation was not
c o n s i d e r e d as a g r o u n d for p r e l i m i n a r y a t t a c h m e n t
(Javellana vs. D.O. Plaza Enterprises, Inc., L-28297,
Mar. 30, 1970). With the present a m e n d m e n t of Par.
(d) to include both kinds of fraud, the former doctrines
689
based on that distinction have been set aside.

It was formerly ruled t h a t a court exceeds its
jurisdiction by issuing a writ of preliminary attachment
on the ground stated in Sec. 1(f) where the complaint is
for the recovery of unliquidated damages arising from a
crime or tort. Said ground was declared to be applicable
only where plaintiff's claim is for liquidated damages,
especially since Sec. 3 requires that plaintiffs claim be
over and above all legal counterclaims (Mialhe vs. De
Lencquesaing, et al., G.R. No. 67715, July 11, 1986;
see also Peregrina, et al. vs. Panis, G.R. No. 56011,
Oct. 31, 1984). This doctrine has been modified by the
requirement in Par. 1(a) that the damages be for specific
amounts other than moral or exemplary.
3. Under the Rules, any party, not only the plaintiff,
can avail of preliminary attachment as long as any of the
grounds therefor exists. A defendant on his counterclaim,
a co-party on his cross-claim, and a third-party plaintiff
on his third-party claim may move for the issuance of the
writ.
4. It is also provided that preliminary attachment
may be sought at the commencement of the action and
before entry of the judgment. Hence, the grounds and a
motion for preliminary attachment may be alleged and
incorporated right in a verified complaint; or if not so
alleged, t h e r e a f t e r but before e n t r y of j u d g m e n t , a
corresponding motion therefor may be filed in the case.
Where the judgment is already final and executory, a
motion for execution is the remedy.
5. A foreign corporation duly licensed to do business
in the Philippines is not a nonresident within the meaning
of Sec. 1(f), Rule 57, hence, its property here may not be
attached on the mere ground t h a t it is a nonresident
(Claude Neon Lights vs. Phil. Advertising Corp., 57 Phil.
607; State Investment House, Inc., et al. vs. Citibank, N.A.,
690
RULE 57 PRELIMINARY ATTACHMENT SEC. 1
et al, G.R. Nos. 79926-27, Oct. 17, 1991). Insolvency of

the defendant debtor is not a ground for the issuance of
a writ of preliminary a t t a c h m e n t (Aboitiz & Co., Inc.,
et al. vs. Prov. Sheriff, etc., et al., L-35990, June 17, 1981).
Sec. 1(f), concerning summons by publication, refers to
those cases in Secs. 14 and 16 of Rule 14.
6. B a s e d on t h e a v a i l a b i l i t y a n d effects of
attachment, it may be classified as (a) preliminary, which
is resorted to at the commencement of the action or at any
time before entry of judgment, for the temporary seizure
of property of the adverse party; and (b) final, or levy
upon execution, which is available after the judgment in
t h e m a i n a c t i o n h a s become e x e c u t o r y , and for t h e
satisfaction of said judgment.
As to form and procedure of enforcement, there is the
r e g u l a r form of a t t a c h m e n t which refers to corporeal
property in the possession of the party, and garnishment
which refers to money, stocks, credits and other incorporeal
property which belong to the party but are in the possession
or under the control of a third person.
The purposes of preliminary attachment are (a) to
seize t h e p r o p e r t y of t h e debtor in a d v a n c e of final
judgment and to hold it for purposes of satisfying said
judgment, or (b) to enable the court to acquire jurisdiction
over the action by the actual or constructive seizure of
the property in those instances where personal service of
summons on the creditor cannot be effected (Mabunag
vs. Gallimore, 81 Phil. 354; Quasha, et al. vs. Juan, et
al., L-49140, Nov. 19, 1982). T h u s , a proceeding in
attachment is in rem where the defendant does not appear,
and in personam where he appears in the action (Banco
Espahol-Filipino vs. Palanca, 37 Phil. 921). Where a lien
already exists, e.g., a maritime lien, the same is equivalent
to an attachment (Quasha, et al. vs. Juan, et al, supra),
just like t h a t under a real estate mortgage.
691
7. Parenthetically, it will be observed that in these

revised Rules, for accuracy and propriety of terminology,
the order of the court and the writ issued p u r s u a n t
t h e r e t o are s e p a r a t e l y identified and indicated. An
implementing writ may be signed and issued either by
the clerk of court or the presiding judge, but the order can
obviously be signed only by the judge himself. The order
is based on the motion filed therefor and any opposition
thereto, and may or may not contain the specific details
but only the nature of the acts desired by the court. On
the other hand, the writ shall be based on said order and
shall contain the details required by the latter or the
provisions of the law or Rules governing the same.
Also, on the nomenclature in the Rules involving
registration of writs, processes or documents, the office
involved in or charged therewith is known as the registry
of deeds, the books where the recordation is made is the
register of deeds, and the official in charge of the office is
the registrar of deeds.
8. In Mangila vs. CA, et al. (G.R. No. 125027,
Aug. 12, 2002), the Supreme Court observed that Rule 57
speaks of the grant of this provisional remedy at the
commencement of the action or at any time thereafter.
Since that phrase refers to the date of the filing of the
complaint, which marks the "commencement of the action,"
the reference is to a time before summons is served on the
defendant, or even before summons was issued.
It then called attention to the fact t h a t the grant of
the provisional remedy of preliminary attachment involves
three stages, specifically the issuance of the order of the
court granting the application, the issuance of the writ
of preliminary attachment and the implementation of
the writ. For the first two stages, it is not necessary
t h a t jurisdiction over the defendant be first obtained.
However, once the implementation of the writ commences,
the court m u s t have acquired j u r i s d i c t i o n over the
692
defendant for, without such jurisdiction, the court has no

power to act in any manner which would be binding on
t h a t defendant.
S e c . 2. Issuance and contents of order. — An

o r d e r o f a t t a c h m e n t m a y b e i s s u e d e i t h e r e x parte
or upon motion with notice and hearing by the
court in which the action is pending, or by the Court
of Appeals or the Supreme Court, and must require
the sheriff of the court to attach so much of the
property in the Philippines of the party against
w h o m it is issued, n o t e x e m p t from execution, as
m a y b e s u f f i c i e n t t o satisfy t h e a p p l i c a n t ' s d e m a n d ,
unless such p a r t y m a k e s deposit or gives a bond as
hereinafter provided in an amount equal to that
fixed in t h e o r d e r , w h i c h m a y be t h e a m o u n t
sufficient to satisfy t h e a p p l i c a n t ' s d e m a n d or t h e
value of the property to be attached as stated by
the applicant. Several writs may be issued at the
same t i m e to t h e sheriffs of the courts of different
j u d i c i a l r e g i o n s . (2a)
NOTES
1. A writ of preliminary attachment may be sought

and issued ex parte (Filinvest Credit Corp. us. Reloua, et
al, G.R. No. 50378, Sept. 30, 1982). Unlike preliminary
injunction which cannot now be issued ex parte (Sec. 5,
Rule 58), notice and h e a r i n g are not required in the
issuance of a writ of preliminary a t t a c h m e n t (Belisle
Investment and Finance Co., Inc. vs. State Investment
House Inc., G.R. No. 71917, June 30, 1987).
2. Property exempt from execution is also exempt
from preliminary a t t a c h m e n t or garnishment (Sec. 5).
Garnishment does not lie against the funds of the regular
departments or offices of the Government, but funds of
public corporations are not exempt from g a r n i s h m e n t
693
(PNB vs. Pabalan, et al, L-33112, June 15, 1978).
Sec. 3. Affidavit and bond required. — An order of

attachment shall be granted only w h e n it appears
by the affidavit of the applicant, or of some other
person w h o personally knows the facts, that a
sufficient cause of action e x i s t s , t h a t the case is one
of those m e n t i o n e d in section 1 hereof, that there is
no other sufficient security for the claim sought to
be enforced by the action, and that the amount due
to the applicant, or the value of t h e property the
p o s s e s s i o n of w h i c h he is entitled to recover, is as
m u c h as t h e s u m for w h i c h t h e order is granted
above all legal c o u n t e r c l a i m s . The affidavit, and
the bond required by the next s u c c e e d i n g section,
must be duly filed with the clerk of the court before
the order issues. (3a)
NOTES
1. For a writ of attachment to be valid, the affidavit

filed therefor must contain all the allegations required in
Sec. 3 of this Rule. Failure to do so renders the writ totally
defective as the judge issuing the writ acts in excess of
j u r i s d i c t i o n (K.O. Glass Construction Co., Inc. vs.
Valenzuela, et al, L-48756, Sept. 11, 1982).
2. Where the obligation was duly secured by a real
estate mortgage, but the mortgagee instead of foreclosing
filed an ordinary action to recover the sum of money
involved, it is not entitled to a writ of preliminary attach-
ment since Sec. 3 of this Rule authorized the same only if
there is no other sufficient security for the plaintiffs claim
(Salgado vs. CA, et al, G.R. No. 55381. Mar. 26, 1984).
3. Under Sec. 3 of this Rule, the only requisites for
the issuance of the writ of preliminary attachment are
the affidavits and bond of the applicant. No notice to the
adverse party or hearing of the application is required, as
694
the time which t h e hearing will entail could be enough to

enable the defendant to abscond or dispose of his property
before the writ of preliminary attachment issues.
To r e p e a t , t h e g r a n t of the provisional remedy of
a t t a c h m e n t basically involves three stages: first, the court
issues the order granting the application; second, the writ
issues p u r s u a n t to the order granting the same; and, third,
the writ is implemented. In the first two stages, it is not
n e c e s s a r y t h a t j u r i s d i c t i o n over t h e p e r s o n o f t h e
defendant should first be obtained. However, to validly
implement the writ, the court must have acquired
j u r i s d i c t i o n over t h e d e f e n d a n t , o t h e r w i s e it h a s no
authority to act (Cuartero vs. CA, et al., G.R. No. 102448,
Aug. 3, 1992). This was subsequently r e i t e r a t e d a n d
explained in Mangila vs. CA, et al., supra.
Sec. 4. Condition of applicant's bond. — T h e p a r t y

a p p l y i n g for t h e o r d e r m u s t t h e r e a f t e r g i v e a b o n d
e x e c u t e d t o t h e a d v e r s e p a r t y i n t h e a m o u n t fixed
by the c o u r t in its o r d e r g r a n t i n g the issuance of
t h e w r i t , c o n d i t i o n e d t h a t t h e l a t t e r will p a y a l l t h e
costs which may be adjudged to the adverse party
a n d all d a m a g e s w h i c h h e m a y s u s t a i n b y r e a s o n o f
t h e a t t a c h m e n t , if t h e c o u r t shall finally a d j u d g e
t h a t t h e a p p l i c a n t w a s n o t e n t i t l e d t h e r e t o . (4a)
NOTES
1. The bond posted by the attaching creditor responds

for the damages and costs which may be adjudged to the
a d v e r s e p a r t y a r i s i n g from a n d b y r e a s o n o f t h e
attachment. Consequently, there must be a finding in
the decision of the court imposing such liability and the
costs shall only be those arising from the attachment itself
and not the other judicial costs t h a t may be imposed
against the losing party (Rocco vs. Meads, et al., 96 Phil.
885). The rule is different with respect to a counterbond
695
for the discharge of an attachment under Sec. 12, infra,

which answers for the judgment account and the costs.
2. Generally, the liability on the attachment bond
provided for in this section is limited to actual damages,
but moral and exemplary damages may be recovered where
the attachment was alleged and proved to be malicious.
Such liability of the bond exists even if the attachment
has been dissolved, whether by the filing of a counter-
bond or by proof t h a t the attachment was irregularly
issued, as long as the court shall finally adjudge that the
attaching party was not entitled thereto (Calderon vs.
IAC, et al., G.R. No. 74696 and First Integrated Bonding
& Insurance Co., Inc. vs. IAC, et al, G.R. No. 73916, jointly
decided on Nov. 11, 1987; see BA Finance Corp. vs. CA, et
al, G.R. No. 61464, May 29, 1988).
3. There is no rule allowing substitution of attached
property although an a t t a c h m e n t may be discharged
wholly or in p a r t upon the security of a counter-bond
offered by the defendant upon application to the court,
with notice to and after hearing the attaching creditor; or
upon application of the defendant, with notice to the
attaching creditor and after hearing, if it appears that
the attachment was improperly or irregularly issued. If
an attachment is excessive, the remedy of the defendant
is to apply to the court for a reduction or partial discharge
and substitution of the attached properties. Otherwise,
the lien acquired by the plaintiff creditor as of the date of
the original levy would be lost and this would, in effect,
constitute a deprivation without due process of law of the
attaching creditor's interest in the attached property as
security for the satisfaction of the judgment which he
may obtain (Santos, et al. vs. Aquino, Jr., etc., et al, G.R.
Nos. 86181-82, Jan. 13, 1992).
Sec. 6. Manner of attaching property.— The sheriff

enforcing the writ shall w i t h o u t delay and with all
696
reasonable diligence attach, to await judgment and

execution in the action, only so much of the
property in the Philippines of the party against
w h o m t h e w r i t is issued, not e x e m p t from execution,
as may be sufficient to satisfy the a p p l i c a n t ' s
demand, unless the former makes a deposit with the
c o u r t from w h i c h t h e writ is issued, or gives a
counter-bond executed to the applicant, in an
a m o u n t e q u a l t o t h e b o n d fixed b y t h e c o u r t i n t h e
order of attachment or to the value of the property
to be a t t a c h e d , exclusive of costs. No levy on
attachment p u r s u a n t to the writ issued under
section 2 h e r e o f shall be enforced u n l e s s it is
preceded, or contemporaneously accompanied, by
service of s u m m o n s , t o g e t h e r with a copy of t h e
c o m p l a i n t , t h e a p p l i c a t i o n for a t t a c h m e n t , t h e
applicant's affidavit and bond, and the o r d e r a n d
writ of attachment, on the defendant within the
Philippines.
The requirement of prior or contemporaneous
service of summons shall not apply where the
summons could not be served personally or by
s u b s t i t u t e d service d e s p i t e diligent efforts, or t h e
d e f e n d a n t is a r e s i d e n t of t h e Philippines t e m p o r a -
rily a b s e n t therefrom, or the d e f e n d a n t is a non-
r e s i d e n t of t h e Philippines, or the action is one in
rem or quasi in rem. (6a)
Sec. 6. Sheriff's return. — A f t e r e n f o r c i n g t h e

writ, t h e sheriff m u s t likewise without delay m a k e
a r e t u r n t h e r e o n to t h e c o u r t from which t h e w r i t
i s s u e d , w i t h a full s t a t e m e n t o f h i s p r o c e e d i n g s
u n d e r the writ and a complete inventory of the
property attached, together with any counter-
bond given by the party against whom attach-
ment is issued, and serve copies thereof on the
applicant.
697
NOTES
1. Sec. 5 now complements the prohibition against

excessive attachment on the adverse party's property by
providing that levy on attachment shall be limited only to
so much of the property as may be sufficient to satisfy the
applicant's demand.
More importantly, in view of controversies in previous
rulings on w h e t h e r levy on a t t a c h m e n t may be made
although jurisdiction over the affected party has not been
obtained, it is now required that such levy shall not be
made unless preceded or contemporaneously accompanied
by service of s u m m o n s t o g e t h e r with a copy of the
complaint, application for attachment, affidavit and bond
of the applicant, and the writ of attachment.
The exception from such requirement of prior or
contemporaneous service of summons are stated in the
second paragraph of the section, and the reasons therefor
are obvious.
2. The attaching officer must serve a copy of the
applicant's affidavit, so that the adverse party may contest
the grounds for the attachment, and there must also be
service of a copy of the applicant's bond, so that the other
party may except to the sufficiency thereof. This duty is
imposed on said officer even if such adverse party is not
found within the province, unlike the condition to that
effect in the former Rule in view of such a provision in
Sec. 5 thereof which has been eliminated in the present
revision.
3. The deposit or bond required of the attaching party

shall be in the amount fixed by the court in the order of
attachment, or equal to the value of the property to be
attached. The latter alternative may be resorted to where
the attaching party shows to the court that he was only
able to locate property of the opposing party which is
insufficient in value to satisfy his claim and/or as initially
698
determined by the court based on the amount of such claim.

It would be too demanding to require the attaching party
to make a deposit or post a bond equal to the full amount
of his claim where the verified leviable property may only
be worth much less t h a n said claim. He is t h u s permitted
to make a deposit or file a bond only for the lower value.
Under Sec. 2 of this Rule, he may thereafter move for
another writ of attachment, in which case he must again
make the corresponding deposit or file the appropriate bond
for t h a t purpose, t a k i n g into account the value of the
additional property he seeks to attach.
Sec. 7. Attachment of real and personal property;

recording thereof. — R e a l a n d p e r s o n a l p r o p e r t y s h a l l
be a t t a c h e d by t h e sheriff executing the writ in t h e
following m a n n e r :
(a) R e a l p r o p e r t y , o r g r o w i n g c r o p s t h e r e o n ,
or any interest therein, standing upon the records
of the registry of deeds of the province in the name
of the party against whom a t t a c h m e n t is issued, or
not a p p e a r i n g at all u p o n such r e c o r d s , or
belonging to the party against whom attachment
is issued and held by any other person, or standing
on the records of the registry of deeds in the name
o f a n y o t h e r p e r s o n , b y filing w i t h t h e r e g i s t r y o f
d e e d s a copy of t h e o r d e r , t o g e t h e r w i t h a
description of the property attached, and a notice
that it is attached, or that such real property and
any interest therein held by or standing in the name
of such other person are attached, and by h a v i n g a
copy of such order, description, and notice with the
occupant of the property, if any, or with such other
p e r s o n or his a g e n t if found within t h e province.
Where the property has been brought under the
o p e r a t i o n o f e i t h e r t h e L a n d R e g i s t r a t i o n Act o r t h e
Property Registration Decree, the notice shall
contain a reference to the n u m b e r of the certificate
699
of title, the volume and page in the registration

book w h e r e t h e c e r t i f i c a t e i s r e g i s t e r e d , a n d t h e
r e g i s t e r e d o w n e r o r o w n e r s thereof.
The registrar of deeds must index attachments
filed u n d e r t h i s s e c t i o n i n t h e n a m e s o f t h e
applicant, the adverse party, or the person by whom
the p r o p e r t y is held or in whose n a m e it stands in
the records. If the a t t a c h m e n t is not claimed on
t h e e n t i r e a r e a o f t h e l a n d c o v e r e d b y t h e certificate
of t i t l e , a d e s c r i p t i o n sufficiently a c c u r a t e for t h e
i d e n t i f i c a t i o n o f t h e l a n d o r i n t e r e s t t o b e affected
shall be included in the r e g i s t r a t i o n of such
attachment;
(b) P e r s o n a l p r o p e r t y c a p a b l e o f m a n u a l
delivery, by t a k i n g a n d safely k e e p i n g it in his
custody, after issuing the corresponding receipt
therefor;
(c) S t o c k s o r s h a r e s , o r a n i n t e r e s t i n s t o c k s
or shares, of any c o r p o r a t i o n or company, by
leaving with the president or managing agent
thereof, a copy of t h e w r i t , a n d a n o t i c e s t a t i n g t h a t
the stock or interest of the party against whom the
a t t a c h m e n t is i s s u e d , is a t t a c h e d in p u r s u a n c e of
such writ;
(d) D e b t s a n d c r e d i t s , i n c l u d i n g b a n k d e p o s i t s ,
financial interest, royalties, commissions a n d other
personal property not capable of m a n u a l delivery,
by leaving with the person owing such debts, or
having in his possession or u n d e r his control, such
credits or o t h e r personal property, or with his
a g e n t , a copy o f t h e w r i t , a n d n o t i c e t h a t t h e d e b t s
owing by him to the party against whom attachment
is issued, and the credits and other personal
property in his possession, or u n d e r his control,
b e l o n g i n g t o said p a r t y , a r e a t t a c h e d i n p u r s u a n c e
of s u c h w r i t ;
700
(e) T h e i n t e r e s t o f t h e p a r t y a g a i n s t w h o m
attachment is issued in property belonging to the
e s t a t e o f t h e d e c e d e n t , w h e t h e r a s heir, l e g a t e e , o r
devisee, by serving the executor or administrator
or other personal representative of the decedent
w i t h a c o p y of t h e w r i t a n d n o t i c e , t h a t said i n t e r e s t
is a t t a c h e d . A c o p y of said writ of a t t a c h m e n t a n d
of said n o t i c e s h a l l a l s o be filed in t h e office of t h e
clerk of the court in which said estate is being
s e t t l e d a n d s e r v e d u p o n t h e heir, l e g a t e e o r d e v i s e e
concerned.
If the property sought to be attached is in
custodia legis, a c o p y of t h e writ of a t t a c h m e n t shall
be filed with the proper court or quasi-judicial
agency, and notice of the attachment served upon
t h e c u s t o d i a n of s u c h property. (7a)
NOTES
1. Par. (a) of this section is a consolidation of Pars,

(a) and (b) of the former section. Par. (d) spells out the
incorporeal properties subject of garnishment which, aside
from stocks or shares and debts or credits which were
provided in the former Rule, should include bank deposits,
financial i n t e r e s t , r o y a l t i e s , commissions and o t h e r
personal property not capable of manual delivery.
2. Pars, (c) and (d) of Sec. 7 refer to garnishment
and provide for the procedure therefor. By such notice
of g a r n i s h m e n t , t h e court acquires jurisdiction over
the garnishee and the latter becomes a forced intervenor
in the case. The garnishee r e m a i n s in possession of
t h e p r o p e r t y g a r n i s h e d b u t holds it subject to t h e
u l t i m a t e disposition thereof by the court. It r e s u l t s
in an involuntary novation by change of creditors (see
Tayabas Land Co. us. Sharuff, 41 Phil. 382).
701
3. In the case of salaries, the same can be attached

only at the end of the month or on the payday provided
by contract or law, as, prior thereto, the same do not
constitute money "due" to the debtor from his employer
(see Garcia vs. Castillo, 43 Phil. 364). Furthermore, if
the employer is the Government, before payday, such
funds are public funds and are exempt from attachment
or execution.
4. Goods imported into the country, while in the
possession of the Collector of Customs and before the duties
thereon have been paid, cannot be attached since the
customs authorities have exclusive jurisdiction thereof and
such writ of attachment would constitute the Collector of
Customs as bailee over said goods, a duty incompatible
with his duties u n d e r the Tariff and Customs Code
(Virata, et al. vs. Aquino, et al, L 35027, Sept. 10, 1978).
5. When the Government enters into commercial
business, it abandons its sovereign capacity and is to be
t r e a t e d like any other corporation (Malong vs. PNR,
et al., L-49930, Aug. 7, 1985). Consequently, its funds
may be subject to a duly issued writ of garnishment
(PNB vs. CIR, et al, L-32667, Jan. 31, 1978; PNB vs.
Pabalan, L 33112, June 15, 1978) or writ of execution
(PNR vs. Union de Maquinistas, L-31948, July 25, 1978);
but the public funds of a municipality are not subject to
levy or execution if intended for a public purpose and such
funds cannot be disbursed without a lawful appropriation
or statutory authority as required by P.D. 477 (Mun. of
San Miguel vs. Fernandez, G.R. No. 61744, June 25,
1984). Even where the immunity of the State from suit
is relaxed, the power of the court ends when judgment is
rendered and the State is at liberty to determine whether
or not to appropriate funds for the satisfaction of the
judgment (Republic vs. Palacio, et al, L 20322, May 29,
1968), as the rule in this jurisdiction is that the State is
liable only for torts caused by its special agents specifically
702
commissioned to perform acts outside their regular duties,

as provided for in Art. 2180 of the Civil Code (Meritt vs.
Insular Gov't, 34 Phil. 311; Rosete vs. Auditor General,
81 Phil. 453). W h e r e , however, a j u d g m e n t on com-
promise, based on contractual u n d e r t a k i n g s , has been
rendered against a city government and an ordinance has
been enacted for the payment thereof, the deposit of the
city g o v e r n m e n t with the PNB can be levied upon on
execution (Pasay City Gov't vs. CFI, et al., L-32162,
Sept. 28, 1984; City of Caloocan, et al. vs. Allarde, etc., et
al, G.R. No. 107271, Sept. 10, 2003).
6. Where the property attached by t h e j u d g m e n t

creditor had previously been mortgaged, the judgment
creditor's lien is inferior to t h a t of the mortgagee which
m u s t first be satisfied in the event of foreclosure. In
reality, w h a t was attached by the judgment creditor was
merely the j u d m e n t debtor's right or equity of redemption
(Top Rate International Services, Inc. vs. IAC, et al,
G.R. No. 67496, July 7, 1986).
7. Property legally attached is property in custodia
legis and cannot be interfered with without the permission
of the proper court, but this is confined to cases where the
property belongs to the defendant or one in which the
defendant has proprietary interest (Traders Royal Bank
vs. IAC, et al, G.R. No. 66326, Oct. 21, 1984). For a
further discussion of the effects of a duly registered
preliminary attachment and the rights of the attaching
creditor thereunder, see Consolidated Bank & Trust Corp.
vs. IAC, et al. (G.R. No. 73976, May 29, 1987), and Note 9
under Sec. 30, Rule 39.
8. Regarding attachment of real property, see also
Sec. 69, P.D. 1529, or the Property Registration Decree.
9. The procedure for levy on a t t a c h m e n t on the
different classes of property mentioned here is also the
procedure to be followed in levy on execution. In fact, as
703
stated at the outset, the latter is also known in some

jurisdictions as final attachment.
Sec. 8. Effect of attachment of debts, credits and all

other similar personal property. — All p e r s o n s h a v i n g in
their possession or under their control any credits
or other similar personal property belonging to the
party against whom a t t a c h m e n t is issued, or owing
any debts to him, at the time of service upon them
o f t h e copy o f t h e w r i t o f a t t a c h m e n t a n d n o t i c e a s
p r o v i d e d in t h e l a s t p r e c e d i n g s e c t i o n , s h a l l be liable
t o t h e a p p l i c a n t for t h e a m o u n t o f s u c h c r e d i t s ,
debts or other similar personal property, until the
attachment is discharged, or any judgment
r e c o v e r e d b y h i m i s satisfied, u n l e s s s u c h p r o p e r t y
is delivered or t r a n s f e r r e d , or such debts a r e paid,
t o t h e c l e r k , sheriff o r o t h e r p r o p e r officer o f t h e
c o u r t i s s u i n g t h e a t t a c h m e n t . (8a)
NOTE
1. G a r n i s h m e n t is a species of a t t a c h m e n t for
reaching property or credits pertaining or payable to a
judgment debtor. It results in a forced novation by the
substitution of creditors, that is, the judgment debtor who
is the original creditor of the garnishee is, through service
of the writ of garnishment, substituted by the judgment
creditor who thereby becomes the creditor of the garnishee.
Garnishment has also been described as a warning to a
person, who has in his possession property or credits of
the judgment debtor, not to pay the money or deliver the
property to the latter but to instead appear and answer
the plaintiffs suit.
It is not necessary to serve s u m m o n s upon the
garnishee in order t h a t the t r i a l court may acquire
jurisdiction to bind him. He need not be impleaded as a
party to the case. All that is necessary is the service upon
him of the writ of garnishment, as a consequence of which
704
RULE 57 PRELIMINARY ATTACHMENT S E C S . 9-10
he becomes a virtual party or a forced intervenor in the

case and the trial court thereby acquires jurisdiction to
require compliance by him with all its orders and processes
(Perla Compania de Seguros, Inc. us. Ramolete, et al., G.R.
No. 60884, Nov. 13, 1991).
Sec. 9. Effect of attachment of interest in property

belonging to the estate of a decedent. — T h e a t t a c h m e n t
of the interest of an heir, or devisee in the property
belonging to the estate of a decedent shall not
impair the powers of the executor, administrator,
or other personal representative of the decedent
o v e r s u c h p r o p e r t y for t h e p u r p o s e o f a d m i n i s -
tration. Such personal representative, however,
shall r e p o r t the a t t a c h m e n t to the court w h e n any
p e t i t i o n for d i s t r i b u t i o n i s filed, a n d i n t h e o r d e r
made upon such petition, distribution may be
a w a r d e d to such heir, legatee, or devisee, but the
property attached shall be ordered delivered to the
s h e r i f f m a k i n g t h e levy, s u b j e c t t o t h e c l a i m o f s u c h
heir, legatee, or devisee, or any person claiming
u n d e r h i m . (9a)
S e c . 10. Examination of party whose property is

attached and persons indebted to him or controlling his
property; deliuery of property to sheriff. — A n y p e r s o n
owing debts to the party whose property is attached
or having in his possession or under his control any
credit or other personal property belonging to such
party, may be r e q u i r e d to a t t e n d before t h e c o u r t
in which t h e action is p e n d i n g , or before a
commissioner appointed by the court, and be
examined on oath respecting the same. The party
whose p r o p e r t y is a t t a c h e d may also be r e q u i r e d to
a t t e n d for t h e p u r p o s e o f g i v i n g i n f o r m a t i o n
respecting his property, and may be examined on
oath. The c o u r t may, after such examination, o r d e r
705
personal property capable of manual delivery

belonging to him, in the p o s s e s s i o n of the person
so required to attend before the court, to be
delivered to t h e clerk of the court, or sheriff on such
terms as may be just, h a v i n g reference to any lien
t h e r e o n o r c l a i m a g a i n s t t h e s a m e , t o a w a i t the
j u d g m e n t in the action. (10a)
NOTES
1. The proceeding here is similar to the examination

of the judgment obligor and of the obligor of such judgment
obligor authorized in Secs. 36 and 37, Rule 39. However,
the said proceeding in Rule 39 is proper only when the
writ of execution is returned unsatisfied. Under this
section, the examination is not subject to a preliminary
condition but is anticipatory in nature and may be resorted
to even if the writ of attachment was not returned because
no property could be found to be levied upon thereunder.
Of course, if the attaching party has succeeded in locating
property of the adverse party sufficient for purposes of
the projected levy, it would be unneccessary for him to
resort to the examination contemplated in this section.
2. If the garnishee does not admit the indebtedness

or he claims the p r o p e r t y , t h e controversy m u s t be
determined in an independent action (Bucra Corp. vs.
Macadaeg, 84 Phil. 493), and the court which issued the
writ of attachment cannot compel the garnishee to appear
before it for examination, as Sec. 10 applies only where
the garnishee admits having in his possession property
belonging to the defendant (MERALCO vs. Genbancor
Dev. Corp., L-41756, July 30, 1976). The a t t a c h i n g
creditor may resort to modes of discovery.
Sec. 11. When attached property may be sold after levy

on attachment and before entry of judgment. — Whenever
it shall be made to appear to t h e court in w h i c h the
706
action is pending, upon hearing with notice to both

parties, that the property attached is perishable, or
t h a t t h e i n t e r e s t s o f all t h e p a r t i e s t o t h e a c t i o n
will b e s u b s e r v e d b y t h e s a l e t h e r e o f , t h e c o u r t m a y ,
on m o t i o n , o r d e r s u c h p r o p e r t y to be sold at p u b l i c
auction in such m a n n e r as it may direct, and the
proceeds to be deposited in court to abide the
j u d g m e n t i n t h e a c t i o n . (11a)
Sec. 12. Discharge of attachment upon giving counter-

bond. — A f t e r a w r i t of a t t a c h m e n t h a s b e e n e n -
forced, t h e p a r t y whose p r o p e r t y h a s been a t t a c h e d ,
o r t h e p e r s o n a p p e a r i n g o n h i s behalf, m a y m o v e
for t h e d i s c h a r g e o f t h e a t t a c h m e n t w h o l l y o r i n
p a r t on t h e security given. The court shall, after
due notice and hearing, order the discharge of the
a t t a c h m e n t if t h e movant makes a cash deposit, or
files a c o u n t e r - b o n d e x e c u t e d t o t h e a t t a c h i n g p a r t y
with the clerk of the court where the application is
m a d e , i n a n a m o u n t e q u a l t o t h a t fixed b y t h e c o u r t
in the order of a t t a c h m e n t , exclusive of costs. But
if the a t t a c h m e n t is sought to be discharged with
respect to a particular property, the counter-bond
shall be equal to the value of that property as
determined by the court. In either case, the cash
deposit or the counter-bond shall secure the
payment of any judgment that the attaching
p a r t y may recover in the action. A notice of the
deposit shall forthwith be served on the attaching
party. Upon the discharge of an attachment in
accordance with the provisions of this section, the
p r o p e r t y a t t a c h e d , or the proceeds of any sale
thereof, shall be delivered to t h e p a r t y m a k i n g t h e
deposit or giving the counter-bond, or to the person
a p p e a r i n g o n h i s behalf, t h e d e p o s i t o r c o u n t e r -
bond aforesaid standing in place of the property so
r e l e a s e d . S h o u l d s u c h c o u n t e r - b o n d for a n y r e a s o n
707
R U L E 57 R E M E D I A L LAW C O M P E N D I U M SEC 13
be found to be or become insufficient, and the party

f u r n i s h i n g t h e s a m e fail t o file a n a d d i t i o n a l
counter-bond, the a t t a c h i n g party may apply for a
new order of attachment. (12a)
Sec. 13. Discharge of attachment on other grounds.

— The party whose property has been ordered
attached may file a motion with the court in which
the action is pending, before or after levy or even
after the release of the attached property, for an
order to set aside or discharge the a t t a c h m e n t on
the ground that the same was improperly or
irregularly issued or enforced, or that the bond is
insufficient. If t h e a t t a c h m e n t is e x c e s s i v e , the
d i s c h a r g e s h a l l be l i m i t e d to t h e e x c e s s . If the
m o t i o n be m a d e on affidavits on t h e part of the
m o v a n t b u t n o t o t h e r w i s e , t h e a t t a c h i n g party
may oppose the motion by counter-affidavits
or other evidence in addition to that on which
the a t t a c h m e n t w a s made. After d u e n o t i c e and
h e a r i n g , t h e c o u r t s h a l l o r d e r t h e s e t t i n g aside
or the c o r r e s p o n d i n g discharge of t h e attachment
if it appears that it w a s improperly or irregularly
issued or enforced, or that the bond is insufficient,
or that the a t t a c h m e n t is e x c e s s i v e , and the defect
is not cured forthwith. (13a)
NOTES
1. Preliminary attachment shall be discharged when
it is established that -
(a) The debtor has posted a counter-bond or has made
the requisite cash deposit (Sec. 12);
(b) The attachment was improperly or irregularly
issued (Sec. 13) as where there is no ground for attachment
(see Sec. 1), or the affidavit and/or bond filed therefor are
defective or insufficient (Sec. 3);
708
(c) The a t t a c h m e n t is excessive, but the discharge

shall be limited to the excess (Sec. 13);
(d) The property attached is exempt from execution,
hence exempt from preliminary attachment (see Secs. 2
and 5); or
(e) The judgment is rendered against the attaching
creditor (see Sec. 19).
2. Where the a t t a c h m e n t is challenged for having

been illegally or improperly issued, t h e r e m u s t be a
hearing, with the burden of proof to sustain the writ being
on t h e a t t a c h i n g creditor (Filinvest Credit Corp. vs.
Relova, supra; Benitez vs. IAC, et al., G.R. No. 71535,
Sept. 15, 1987; Mindanao Savings & Loan Association,
Inc. vs. CA, et al., G.R. No. 84481, April 18, 1989). An ex
parte discharge or suspension of the a t t a c h m e n t is a
disservice to the orderly administration of justice and
nullifies the underlying role and purpose of preliminary
attachment in preserving the rights of the parties pendente
lite as an ancillary remedy (Peroxide Philippines Corp.,
et al. vs. CA, et al., G.R. No. 92813, July 21, 1991).
3. Unlike the bond posted for the issuance of a writ

of preliminary attachment, which responds for damages
resulting from the attachment (Sec. 20), the counter-bond
posted for the discharge of such attachment responds for
the payment of the judgment recovered by the attaching
creditor (Sec. 17), r e g a r d l e s s of t h e wordings of t h e
bond, as this liability is deemed incorporated t h e r e i n
(Leelin Marketing Corp. vs. C & S Agro Dev. Co., et al.,
L-38971, April 28, 1983). An order for the execution of
the judgment pending appeal can also be enforced against
said counter-bond (see Phil. British Assurance Co., Inc.
vs. IAC, et al., G.R. No. 72005, May 29, 1987; Note 11
under Sec. 4, Rule 39).
4. The merits of the complaint are not triable in a
motion to discharge an attachment, otherwise an applicant
709
for the dissolution of the writ could force a trial on the

merits of the case on the strength alone of such motion
(Consolidated Bank and Trust Corp. vs. CA, et al., G.R.
No. 84588, May 29, 1991).
5. Thus, when the preliminary attachment is issued
upon a ground which also constitutes the applicant's cause
of action, such as an action for money or property
embezzled or fraudulently converted by the defendant,
he is not allowed to move for the dissolution of the
attachment under Sec. 13 of this Rule by offering to show
the falsity of the averments in the applicant's motion and
supporting documents since the hearing on that motion
for dissolution would be tantamount to a trial on the merits
in the main action (Chuidian vs. Sandiganbayan, G.R.
No. 139941, Jan. 19, 2000). A similar doctrinal rule
obtains in preliminary injunction (see Note 7 under Sec.
1, Rule 58).
Sec. 14. Proceedings where property claimed by third

person. — If t h e p r o p e r t y t a k e n is c l a i m e d by a n y
person other than the party against whom
a t t a c h m e n t had been issued or his agent, and such
person m a k e s an affidavit of his title t h e r e t o , or
r i g h t t o t h e p o s s e s s i o n thereof, s t a t i n g t h e g r o u n d s
o f s u c h r i g h t o r t i t l e , a n d s e r v e s s u c h affidavit u p o n
the sheriff while the latter h a s possession of the
attached property, and a copy thereof upon the
a t t a c h i n g o b l i g e e , t h e sheriff s h a l l n o t b e b o u n d t o
keep the property under attachment, unless the
attaching party or his agent, on d e m a n d of the
sheriff, s h a l l file a b o n d a p p r o v e d by t h e c o u r t to
idemnify t h e t h i r d - p a r t y c l a i m a n t i n a s u m n o t less
t h a n the value of the p r o p e r t y levied upon. In
case of disagreement as to such value, the same
shall be decided by the court issuing t h e writ of
a t t a c h m e n t . N o c l a i m for d a m a g e s for t h e t a k i n g
or keeping of the property may be enforced against
710
t h e bond u n l e s s t h e a c t i o n t h e r e f o r i s filed w i t h i n
o n e h u n d r e d t w e n t y (120) d a y s from t h e d a t e o f t h e
filing of t h e bond.
The s h e r i f f s h a l l not be liable for d a m a g e s , for
t h e t a k i n g o r k e e p i n g o f s u c h property, t o a n y s u c h
t h i r d - p a r t y c l a i m a n t , if s u c h b o n d s h a l l be filed.
Nothing herein contained shall prevent such
c l a i m a n t o r a n y t h i r d p e r s o n from v i n d i c a t i n g h i s
claim to the property, or prevent the attaching
party from c l a i m i n g d a m a g e s a g a i n s t a third-party
c l a i m a n t w h o filed a frivolous or plainly s p u r i o u s
claim, in t h e s a m e or a s e p a r a t e a c t i o n .
W h e n t h e w r i t of a t t a c h m e n t is i s s u e d in favor
of t h e R e p u b l i c of t h e P h i l i p p i n e s , or a n y officer
d u l y r e p r e s e n t i n g it, t h e filing of s u c h bond s h a l l
not be r e q u i r e d , and in c a s e t h e sheriff is s u e d for
d a m a g e s as a r e s u l t of t h e a t t a c h m e n t , he s h a l l be
r e p r e s e n t e d by t h e S o l i c i t o r G e n e r a l , a n d if h e l d
liable t h e r e f o r , t h e a c t u a l d a m a g e s a d j u d g e d by t h e
c o u r t s h a l l be paid by t h e National T r e a s u r e r o u t
of t h e f u n d s to be a p p r o p r i a t e d for t h e p u r p o s e .
(14a)
NOTES
1. See Sec. 16, Rule 39 for a substantially identical

procedure where property levied upon on execution is
claimed by a third person.
2. Where t h e p r o p e r t y of a d e f e n d a n t has been
attached, a third party claiming an interest therein can
maintain a separate action to vindicate his interest over
the property and the injunctive relief granted in the latter
case does not constitute an interference with the writ of
attachment issued by the other court as this procedure is
sanctioned by Sec. 14 of Rule 57 (Traders Royal Bank vs.
IAC, et al., G.R. No. 66321, Oct. 31, 1984).
711
R U L E 57 R E M E D I A L LAW C O M P E N D I U M SECS. 1516
Sec. 16. Satisfaction of judgment out of property

attached; return of sheriff. — If j u d g m e n t be r e c o v e r e d
by the a t t a c h i n g obligee and execution issue
t h e r e o n , t h e sheriff m a y c a u s e t h e j u d g m e n t t o b e
satisfied out of t h e p r o p e r t y a t t a c h e d , if it be
sufficient for t h a t p u r p o s e i n t h e following m a n n e r :
(a) B y p a y i n g t o t h e j u d g m e n t o b l i g e e t h e
p r o c e e d s o f all s a l e s o f p e r i s h a b l e o r o t h e r p r o p e r t y
sold in p u r s u a n c e of t h e o r d e r of t h e c o u r t , or so
m u c h a s s h a l l b e n e c e s s a r y t o satisfy t h e j u d g m e n t ;
(b) I f a n y b a l a n c e r e m a i n d u e , b y s e l l i n g s o
much of the property, real or personal, as may be
n e c e s s a r y t o satisfy t h e b a l a n c e , i f e n o u g h for t h a t
purpose remain in the sheriffs h a n d s , or in those
of the clerk of t h e court;
(c) By c o l l e c t i n g f r o m all p e r s o n s h a v i n g in
their possession credits belonging to the judgment
obligor, o r o w i n g d e b t s t o t h e l a t t e r a t t h e t i m e o f
the attachment of such credits or debts, the amount
of such credits and debts as determined by the court
in the action, and stated in the judgment, and
paying the proceeds of such collection over to the
j u d g m e n t obligee.
The sheriff shall forthwith m a k e a r e t u r n in
writing to the court of his proceedings u n d e r this
s e c t i o n a n d f u r n i s h t h e p a r t i e s w i t h c o p i e s thereof.
(15a)
Sec. 16. Balance due collected upon an execution;

excess delivered to judgment obligor. — If a f t e r r e a l i z i n g
u p o n all t h e p r o p e r t y a t t a c h e d , i n c l u d i n g the
proceeds of any debts or credits collected, and
applying the proceeds to the satisfaction of the
j u d g m e n t , less t h e e x p e n s e s o f p r o c e e d i n g s u p o n
the judgment, any balance shall remain due, the
sheriff, u p o n r e a s o n a b l e d e m a n d , m u s t r e t u r n t o t h e
712
judgment obligor the attached property remaining

i n h i s h a n d s , a n d a n y p r o c e e d s o f t h e sale o f t h e
property attached not applied to the judgment.
(16a)
Sec. 17. Recovery upon the counter-bond. — W h e n

the judgment has become executory, the surety or
sureties on any counter-bond given pursuant to the
p r o v i s i o n s o f t h i s Rule t o s e c u r e t h e p a y m e n t o f t h e
judgment shall become charged on such counter-
bond, a n d b o u n d t o pay t h e j u d g m e n t o b l i g e e u p o n
demand, the amount due under the judgment, which
a m o u n t may be recovered from such surety or
s u r e t i e s after n o t i c e a n d s u m m a r y h e a r i n g i n t h e
s a m e a c t i o n . (17a)
NOTES
1. W h e r e t h e w r i t of e x e c u t i o n is r e t u r n e d
unsatisfied, the liability of the counter-bond automatically
a t t a c h e s w i t h o u t t h e need for t h e plaintiff to file a
supplemental pleading to claim payment from the surety
(Vanguard Assurance Corp. vs. CA, et al., L-25921,
May 27, 1975), but the creditor must have made a demand
on the surety for satisfaction of the judgment and the
surety was given notice and a summary hearing in the
same action as to his liability under his counter-bond
(Towers Assurance Corp. vs. Ororama Supermart, et al.,
L-45848, Nov. 9, 1977; Leelin Marketing Corp. vs C & S
Agro Dev. Co., et al., supra).
2. A writ of execution for recovery on the counter-

bond issued against the surety who was not given notice
a n d an o p p o r t u n i t y to be h e a r d is invalid (Towers
Assurance Corp. vs. Ororama Supermart, et al., supra).
3. Where, however, damages were assessed against
the counter-bond after notice and hearing, a writ of
execution to satisfy the same may forthwith issue and the
713
o r d e r for i t s i s s u a n c e i s g e n e r a l l y n o t a p p e a l a b l e . T h e r e
i s n o n e e d for a s e p a r a t e a c t i o n t o r e c o v e r o n t h e c o u n t e r -
b o n d (Imperial Insurance, Inc. vs. De los Angeles, L-28030,
Jan. 18, 1982). W h i l e S e c . 17 p r o v i d e s t h a t t h e c o u n t e r -
bond i s l i a b l e for "the a m o u n t d u e u n d e r t h e j u d g m e n t , "
t h e s u r e t y c a n n o t b e h e l d l i a b l e for a n y d e f i c i e n c y i n t h e
recovery if it is in e x c e s s of the a m o u n t stated in the
counter-bond as, in this case, the terms thereof constitute
t h e l a w b e t w e e n t h e p a r t i e s , a n d n o t t h e R u l e s o f Court
(Central Surety & Insurance Co., Inc. vs. Ubay, et al.,
L-40334, Feb. 28, 1985).
S e c . 1 8 . Disposition of money deposited. — W h e r e

the party against w h o m attachment had been
issued has deposited money instead of giving
counter-bond, it shall be applied under the direction
of the court to the satisfaction of any judgment
r e n d e r e d in favor of the a t t a c h i n g obligee, a n d after
satisfying the judgment the balance shall be
refunded to the depositor or his assignee. If the
judgment is in favor of the party against w h o m
attachment was issued, the whole sum deposited
m u s t be r e f u n d e d to h i m or his a s s i g n e e . (18a)
S e c . 1 9 . Disposition of attached property where

judgment is for party against whom attachment was issued.
— If j u d g m e n t be rendered against the attaching
obligee, all t h e p r o c e e d s o f s a l e s a n d m o n e y collected
or r e c e i v e d by the sheriff, u n d e r the order of
a t t a c h m e n t , and all property a t t a c h e d r e m a i n i n g
in any s u c h officer's h a n d s , shall be d e l i v e r e d to the
party against w h o m attachment was issued, and the
order of a t t a c h m e n t d i s c h a r g e d . (19a)
NOTE
1. Secs. 18 a n d 19 p r o v i d e for t h e p r o c e d u r e in t h e
d i s p o s i t i o n o f (1) m o n e y w h i c h w a s d e p o s i t e d b y a p a r t y
714
against whom a t t a c h m e n t was ordered instead of his

posting a counter-bond for the lifting of the levy; and
(2) where property was attached or sold, or money due to
the party against whom attachment was issued had been
collected by the court officer under the writ of attachment,
but t h e j u d g m e n t was against the a t t a c h i n g creditor.
Restitution in either case is indicated and governed by
these sections, without prejudice to the liability of the
attaching creditor under the following section.
Sec. 20. Claim for damages on account of improper,

irregular or excessive attachment. — An a p p l i c a t i o n for
damages on account of improper, irregular or
e x c e s s i v e a t t a c h m e n t m u s t be filed before t h e trial
or before a p p e a l is p e r f e c t e d or before the j u d g m e n t
becomes executory, with due notice to the
attaching obligee and his surety or sureties, setting
forth t h e facts s h o w i n g h i s right t o d a m a g e s a n d
t h e a m o u n t thereof. S u c h d a m a g e s may be a w a r d e d
only after p r o p e r h e a r i n g and shall be i n c l u d e d in
t h e j u d g m e n t o n t h e main c a s e .
If the judgment of the appellate court be
favorable to the party against w h o m the attach-
ment was issued, he must claim damages sustained
during the p e n d e n c y of the appeal by filing an
a p p l i c a t i o n in t h e a p p e l l a t e court w i t h n o t i c e to t h e
party in w h o s e favor the a t t a c h m e n t w a s i s s u e d or
h i s s u r e t y or s u r e t i e s , before t h e j u d g m e n t of t h e
a p p e l l a t e c o u r t b e c o m e s e x e c u t o r y . The a p p e l l a t e
c o u r t may allow t h e a p p l i c a t i o n to be h e a r d a n d
d e c i d e d by t h e trial court.
Nothing herein contained shall prevent the
party a g a i n s t w h o m the a t t a c h m e n t w a s issued from
r e c o v e r i n g i n t h e s a m e action t h e d a m a g e s a w a r d e d
to h i m from any property of t h e a t t a c h i n g o b l i g e e
not e x e m p t from e x e c u t i o n should the bond or
d e p o s i t g i v e n by t h e latter be insufficient or fail to
715
RULE 57 R E M E D I A L LAW C O M P E N D I U M 8 E C . 20
fully satisfy t h e a w a r d . (20a)
NOTES
1. This section governs the consequences where the

attaching creditor fails to sustain his action and judgment
is rendered against him. The debtor whose property was
attached can proceed against the bond posted by the
a t t a c h i n g creditor to obtain the writ of preliminary
attachment.
2. However, even if judgment was rendered against
the attaching creditor but he proves that he acted in good
faith in procuring such p r e l i m i n a r y a t t a c h m e n t , the
adverse party cannot recover on the attachment bond
(Banque General Beige vs. Bull & Co., 84 Phil. 164;
Worcester vs. Lorenzana, 104 Phil. 234).
3. Sec. 20 provides for the procedure to be followed
in recovering damages against the bond posted by the
attaching creditor. Such procedure is the same as that
for recovery of damages against the bond posted by the
a p p l i c a n t in p r e l i m i n a r y injunction, receivership or
replevin (see Malayan Insurance Co. vs. Solas, L-48820,
May 25, 1979).
4. The application for damages must be made by a

counterclaim in the answer (Ganaway vs. Fidelity &
Surety Co., Inc., 45 Phil. 406; Medina vs. Maderera del
Norte de Catanduanes, 51 Phil. 240) or by motion in the
same action. It should be filed in the trial court at any
time before t h e t r i a l or before t h e a p p e a l from the
judgment therein is perfected or before such judgment
becomes e x e c u t o r y , a n d s h a l l include all d a m a g e s
s u s t a i n e d by r e a s o n of t h e a t t a c h m e n t d u r i n g t h e
pendency of the case in the trial court (see San Beda
College vs. SSS, L-27493, May 29, 1970, and cases cited
t h e r e i n r e g a r d i n g t h e bond in injunction cases; cf.
Mendoza, et al. vs. Cruz, et al., L-26829, Dec. 27, 1979).
716
If t h e case is a p p e a l e d and t h e j u d g m e n t of t h e
appellate court is in favor of the party whose property
was attached, he can ask for damages sustained by him
during the pendency of the appeal by filing a motion in
the appellate court at any time before such judgment on
appeal becomes executory (Luneta Motor Co. vs. Menendez,
et al, 117 Phil. 970), but if he did not apply for damages
in the trial court, he cannot ask for damages during the
pendency of the trial by motion in the appellate court.
However, where the writ of preliminary attachment issued
by the trial court was declared null and void in an original
action before the appellate court, the damages sustained
by the p a r t y whose property was a t t a c h e d can be
adjudicated on appeal in the main case by the Court of
Appeals, especially since Sec. 9 of B.P. Blg. 129 grants it
the power to resolve factual issues in cases falling within
its original or appellate jurisdiction. The appellate court
shall h e a r and decide the application and include in its
judgment the award against the surety, or it may refer
such claim to the trial court and allow it to hear and decide
the same (Hanil Dev. Co., Ltd. vs. IAC, et al, G.R. No.
71229, Sept. 30, 1986).
5. The surety must be notified of the application for
d a m a g e s , o t h e r w i s e the j u d g m e n t t h e r e o n cannot be
executed against him. Where the judgment became final
and the surety was not impleaded by such notice, the
s u r e t y is r e l i e v e d from liability (Visayan Surety &
Insurance Co. vs. Pascual, 85 Phil. 779). For the same
rule in injunction bonds, see Visayan Surety & Insurance
Co. vs. Lacson (96 Phil. 878). The damages recoverable
for a wrongful attachment is limited to the amount of the
bond (Pads vs. COMELEC, L-29026, Aug. 22, 1969).
6. The procedure for claiming damages outlined in
Sec. 20 is exclusive, hence such claims for damages cannot
be the subject of an independent action, except:
(a) Where the principal case was dismissed for lack
717
of j u r i s d i c t i o n by t h e t r i a l court w i t h o u t giving an
opportunity to the party whose property was attached to
apply for and prove his claim for damages; and
(b) Where the damages by reason of the attachment
was sustained by a third person who was not a party to
the action wherein such writ was issued (Santos vs. CA,
et al.. 95 Phil. 360).
7. The claim for damages against the bond in an
alleged wrongful attachment can only be sought in the
same court where the bond was filed and the attachment
was issued. Where the action filed in the Court of First
Instance of Manila, which issued the writ of preliminary
attachment, was subsequently dismissed for improper
venue, it was not error for said court to set the case for
hearing only on the issue of damages but which application
for d a m a g e s was l a t e r w i t h d r a w n by t h e defendant.
Neither did the Court of First Instance of Cebu, wherein
the same case was subsequently refiled, have jurisdiction
to rule on the issue of damages on the bond as therein
claimed by the same defendant since it was not the court
which issued the writ of preliminary attachment subject
of defendant's claim for damages and it had no jurisdiction
over the surety company which issued said bond, pursuant
to Sec. 20 of this Rule. The doctrine in Santos vs. CA, et
al., supra, is not applicable since in said case, the principal
action was dismissed for lack of jurisdiction and no claim
for damages could therefore have been presented therein
(Pioneer Insurance & Surety Corp., et al. vs. Hontanosas,
et al, L-35951, Aug. 31, 1977).
8. The procedure under this section is different from

that in Sec. 17 of this Rule regarding the liability of the
surety on the counter-bond posted for the lifting of the
preliminary attachment, under which the surety may be
held liable after notice and summary hearing if execution
of t h e j u d g m e n t was r e t u r n e d u n s a t i s f i e d (Towers
Assurance Corp. vs. Ororama Supermart, supra).
718
RULE 58
PRELIMINARY I N J U N C T I O N
S e c t i o n 1. Preliminary injunction defined; classes.

— A p r e l i m i n a r y i n j u n c t i o n is an o r d e r g r a n t e d at
any s t a g e o f a n a c t i o n o r p r o c e e d i n g prior t o t h e
j u d g m e n t or f i n a l o r d e r , r e q u i r i n g a p a r t y or a
c o u r t , a g e n c y or a p e r s o n to refrain from a
particular act or acts. It may also require the
p e r f o r m a n c e of a p a r t i c u l a r a c t or a c t s , in w h i c h
c a s e it s h a l l be k n o w n as a p r e l i m i n a r y m a n d a t o r y
injunction, (la)
Sec. 9. When final injunction granted. — If after

t h e trial of t h e a c t i o n it a p p e a r s t h a t t h e a p p l i c a n t
i s e n t i t l e d t o h a v e t h e act o r a c t s c o m p l a i n e d o f
p e r m a n e n t l y e n j o i n e d , t h e c o u r t shall grant a final
injunction perpetually restraining the party or
p e r s o n e n j o i n e d from the c o m m i s s i o n or con-
tinuance of the act or acts or confirming the
p r e l i m i n a r y m a n d a t o r y injunction. (10a)
NOTES
1. Injunction is a judicial writ, process or proceeding

whereby a party is ordered to do or refrain from doing a
p a r t i c u l a r act. It may be an action in itself, brought
specifically to restrain or command the performance of an
act (see Art. 26, Civil Code; Sec. 4, Rule 39; Manila
Banking Corp., et al. vs. CA, et al., L-45961, July 3, 1990),
or it may j u s t be a provisional remedy for and as an
incident in the main action which may be for other reliefs.
In its customary usage, injunction is a judicial process
operating in personam, and requiring a person to whom it
is directed to do or refrain from doing a particular thing
(Gainsberg vs. Dodge, 193 Art. 478, 101 S.W. 2d 178). In
719
RULE 68 R E M E D I A L LAW C O M P E N D I U M SECS 1. 9
the amended Sec. 1 of this Rule, the coverage of the writ

has been expanded to include a party or a court, agency
or person for whom its directive may be intended, in line
with judicial practice and procedure which justifies or
necessitates such r e s t r a i n t against a court or agency
impleaded as a respondent in a higher court or a non-
party whose acts are involved in the proceeding.
2. The primary purpose of injunction is to preserve
the status quo by restraining action or interference or by
furnishing preventive relief. The status quo is the last
actual, peaceable, uncontested status which precedes the
pending controversy (Rodulfa vs. Alfonso, 76 Phil. 225).
This rule deals with injunction as a provisional
remedy. Thus, the main action may be for permanent
injunction and the plaintiff may ask for preliminary
injunction therein pending the final judgment (see Manila
Banking Corp. vs. CA, et al., G.R. Nos. 45961, July 3,
1990).
3. Injunction may be p r e l i m i n a r y or final. Pre-
liminary injunction, under Sec. 1, is an order granted at
any stage of an action prior to the judgment or final order
therein. A final injunction, under Sec. 9, is one issued in
the judgment in the case permanently restraining the
defendant or making the preliminary injunction
permanent. For this reason, Secs. 1 and 9 of this Rule
are presented jointly for referential contrast.
Injunction may also be preventive (or prohibitive) or
mandatory. As provided in these sections, a preventive
injunction requires a person to refrain from doing a
particular act, while a mandatory injunction requires the
performance of a particular act.
4. A mandatory injunction is an extreme remedy and
will be granted only on a showing that (a) the invasion
of the right is material and substantial, (b) the right of
the complainant is clear and unmistakable, and (c) there
720
RULE 58 PRELIMINARY INJUNCTION S E C S . 1, 9
is an u r g e n t and p a r a m o u n t necessity for t h e writ to

prevent serious damage (Bautista, et al. vs. Barcelona, et
al., 100 Phil. 1078). And in Lemi vs. Valencia. (L-20768,
Feb. 28, 1963), a further requisite is t h a t the effect of the
mandatory injunction would not be to create a new relation
between the parties which was arbitrarily interrupted by
the defendant (see Alvaro, et al. vs. Zapata, et al., G.R.
No. 50548, Nov. 25, 1982). That requisite, however, is
already assumed in preliminary injunction which has for
its purpose precisely the preservation of the status quo
ante (Rivera, et al. vs. Florendo, etc., et al, G.R. No. 57586,
Oct. 8, 1986).
To be entitled to an injunctive writ, it is necessary
t h a t there be a clear showing of the right claimed by the
applicant, although no conclusive proof is necessary at
t h a t s t a g e . Nevertheless, it must be shown, at least
t e n t a t i v e l y , t h a t it exists and is not vitiated by any
substantial challenge or contradiction (Developers Group
of Companies, Inc. vs. CA, et al., G.R. No. 104583, Mar. 8,
1993).
5. A preventive preliminary injunction, as succinctly

summarized by the Supreme Court, is an order granted
at any stage of an action prior to final judgment, requiring
a person to refrain from doing a particular act. As an
ancillary remedy, preliminary injunction may be resorted
to by a party to protect or preserve his rights and for no
other purpose. It is not a cause of action in itself but
merely an adjunct to a main cause, in order to preserve
the status quo until the merits of the case can be heard.
Thus, a person who is not a party in the main suit cannot
be bound by an ancillary writ of injunction since he cannot
be affected by a proceeding to which he is a s t r a n g e r
(Mabuyo Farms, Inc. vs. CA, et al., G.R. No. 140058,
Aug. 1, 2002; citations omitted).
6. Distinctions between injunction and prohibition:
a. Injunction is generally directed against a party
721
R U L E 58 R E M E D I A L LAW C O M P E N D I U M S E C S . 1. 9
in the action, while prohibition is directed against a court,

tribunal or person exercising judicial powers.
b. Injunction does not involve the jurisdiction of the
court, whereas prohibition may be on the ground that the
court against whom the writ is sought acted without or in
excess of jurisdiction.
c. Injunction may be the main action itself, or just a
provisional remedy in the main action, whereas prohibition
is always a main action. Hence, for temporary restraint
in a proceeding for prohibition, preliminary injunction
must be sought therein.
7. As a general rule, courts should avoid issuing a
writ of preliminary injunction which in effect disposes of
the main case without trial. Otherwise, if the main prayer
of the complaint has been granted t h r o u g h a writ of
preliminary mandatory injunction, there will practically
be nothing left for the lower court to try except the
plaintiffs claim for damages (Ortigas & Co. Limited
Partnership vs. CA, et al., G.R. No. 79128, June 16, 1988).
8. Where the only ground relied upon for injunctive
relief is the alleged nullity of an ordinance, if the court
should issue the preliminary writ, it would be a virtual
acceptance t h a t the ordinance is of doubtful validity.
There would, in effect, be a prejudgment of the main case
and a reversal of the rule on burden of proof since it would
assume the proposition which the petitioner is inceptively
duty bound to prove (Valley Trading Co., Inc. vs. CFI of
Isabela, et al., L-49529, Mar. 31, 1989).
9. In the issuance of a writ of preliminary injunction,
the courts are given sufficient discretion to determine the
necessity of the g r a n t thereof, with t h e caveat t h a t
extreme caution be observed in t h e exercise of such
discretion. It must be with an equal degree of care and
caution that courts ought to proceed in the denial of the
writ. It should not just summarily issue an order of denial
722
RULE 58 PRELIMINARY INJUNCTION S E C S . 1, 9
without an adequate hearing and judicious evaluation of

t h e m e r i t s of t h e application. A perfunctory and
improvident action in this regard would be a denial of
procedural due process (Bataclan, et al. vs. CA, et al.,
G.R. No. 78148, July 31, 1989).
10. A second application for preliminary injunction,

which r e s t s in t h e sound discretion of t h e court, will
ordinarily be denied unless it is based on facts unknown
at the time of the first application. The reason for this
rule is the same as the interdiction on splitting a single
cause of action while providing for permissive joinder of
causes of action, both intended to avoid multiplicity of
suits. However, this rule applies only where the second
application is to operate on the same act sought to be
enjoined in the first application, and cannot be invoked
where relief is sought against a different act (Reyes vs.
CA, et al, G.R. No. 87647, May 21, 1990).
11. A p r e l i m i n a r y m a n d a t o r y injunction is not a

p r o p e r r e m e d y to t a k e d i s p u t e d p r o p e r t y out of t h e
possession and control of one party and to deliver the same
to the other party. It may issue pendente lite only in
cases of extreme urgency, where the right to the possession
of the property involved is very clear; where considerations
of relative inconvenience bear strongly in favor of the
complainant seeking the possession of the property during
the pendency of the main case; where there was willful
and unlawful invasion of the plaintiffs rights over his
protest and remonstrance, the injury being a continuing
one; and where the effect of the preliminary mandatory
injunction is to reestablish and maintain a pre-existing
and continuing relationship between the parties, recently
and arbitrarily interrupted by the defendants, rather than
to establish a new relationship while the principal case is
pending (Merville Park Homeowners Association, Inc.
vs. Velez, et al., G.R. No. 82985, April 22, 1991).
723
S e c 2. Who may grant preliminary injunction. — A

preliminary injunction may be granted by the court
where the action or p r o c e e d i n g is pending. If the
a c t i o n or p r o c e e d i n g is p e n d i n g in t h e Court of
Appeals or in the S u p r e m e Court, it may be issued
by said court or any member thereof. (2a)
NOTES
1. Jurisdictional rules on preliminary injunction:

a. The Supreme Court can issue the preliminary writ
in cases on appeal before it or in original actions commenced
therein. However, an original action for injunction is
outside the jurisdiction of the Supreme Court but must be
filed in t h e Court of F i r s t I n s t a n c e (Madarang vs.
Santamaria, 37 Phil. 304) or in the Court of Appeals.
b. Formerly, the Court of Appeals could issue writs
of preliminary injunction only in aid of its appellate
jurisdiction. As this presupposes t h a t there is a right of
appeal to said court, then the Court of Appeals had no
jurisdiction to issue a writ of preliminary injunction to
restrain a final judgment (J.M Tuason & Co. vs. CA, et
al., L-18128 and 18672, Dec. 26, 1961).
However, u n d e r Sec. 9(1) of B.P. Blg. 129, the
present Court of Appeals can now issue auxiliary writs
whether or not these are in aid of its appellate jurisdiction.
Consequently, it is submitted that the foregoing doctrine
has been modified in the sense that despite this change in
legislation, no such auxiliary writs can likewise be issued
if the judgment of the lower court has already become final
and executory, unless the writ is prayed for as a provisional
remedy in an original action filed in the Court of Appeals
challenging or seeking to restrain the enforcement of said
judgment or to annul the same as in Rule 47.
c. Also, a Court of First Instance had jurisdiction to
issue writs of preliminary injunction in cases pending
724
RULE 58 PRELIMINARY INJUNCTION SEC. 2
before it and those pending in lower courts within its

territorial jurisdiction. However -
(1) The jurisdiction of the Court of First Instance
to restrain acts by a writ of injunction was limited to
t h o s e being or a b o u t to be committed w i t h i n its
t e r r i t o r i a l jurisdiction (Central Bank vs. Cajigal,
L-19278, Dec. 29, 1962; Hacbang vs. Leyte Autobus
Co., L-17907, May 30, 1963; De la Cruz vs. Gabor, et
al, L-30774, Oct. 31, 1969; City ofDavao vs. Angeles,
et al, L-30719, May 26, 1977; Mendoza vs. Cruz,
L-26829, Dec. 27, 1979; Sec. 44[h], R.A. 296). Insofar
as injunctive or prohibitory writs were concerned,
Courts of First Instance had the power to issue writs
limited to or operative only within their respective
provinces or districts (now, regions, [Par. 3(a), Interim
Rules]). The provisions of Sec. 3, Rule 135 were
delimited on this particular score by Sec. 44(h) of R.A.
296, as amended (Dir. of Forestry, et al. vs. Ruiz, et
al, L-24882, April 30, 1971) and further modified as
above indicated. Where the order dismissing the
plaintiff employee was issued by the Commissioner of
Land Transportation in the head office in Quezon City
but the dismissal order was to be implemented by the
registrar of the LTC in Dagupan City, the Court of
First Instance in Dagupan City had jurisdiction to
issue a writ of preliminary injunction against said
registrar (Decano vs. Edu, L-30070, Aug. 29, 1980;
cf. Olongapo Electric, etc., Corp. vs. NPC, L-24912,
April 9, 1987).
(2) It could not i s s u e w r i t s of p r e l i m i n a r y
injunction in unfair labor practices, or where the issue
involved is interwoven with an unfair labor practice
case pending in the then Court of Industrial Rela-
tions (Chan Bros., Inc. vs. FOITAF Democratic Labor
Union, L-34761, Jan. 17, 1974). The s a m e rule
applies in proceedings under the Labor Code (see
Art. 254, P.D. 442, infra), with exceptions.
725
(3) It could not issue a writ of preliminary injunc-

tion against the Social Security Commission (Poblete
Construction Co. vs. SSC, L-17606, Jan. 22, 1964),
the Securities and Exchange Commission (Pineda vs.
Lantin, L-15350, Nov. 30, 1962; Phil. Pacific Fishing
Co., Inc. vs. Luna, G.R. No. 59070, Mar. 15, 1982),
or in disputes within the exclusive jurisdiction of the
Securities and Exchange Commission (Dionisio, et
al. vs. CFI, et al., G.R. No. 61048, Aug. 17, 1983), or
t h e f o r m e r P u b l i c S e r v i c e C o m m i s s i o n (Iloilo
Commercial & Ice Co. vs. Public Service Commission,
56 Phil. 28; Regalado vs. Prov. Constabulary
Commander, etc., L-15674, Nov. 29, 1961), the Patent
Office (Honda Giken Kogyo Kabushiki Kaisha vs. San
Diego, L22756, Mar. 18, 1966), or the Commission
on Elections (Macud vs. COMELEC, et al, L-28562,
April 25, 1968), as the remedy lies in either the Court
of Appeals or the Supreme Court, as the case may be
(cf. National Electrification Adm., et al. vs. Mendoza,
et al, G.R. No. 62030, Sept. 25, 1985).
(4) It could not interfere by injunction with the
j u d g m e n t of a court of c o n c u r r e n t or coordinate
j u r i s d i c t i o n (Calderon vs. Gomez, etc., L-25239,
Nov. 18, 1967; Luciano vs. Provincial Governor, et
al, L-30306, June 20, 1969), provided t h e relief
sought by such injunction is one which could be
granted by the court which rendered the judgment
(Abiera, et al. vs. CA, et al, L-26294, May 31, 1972),
or when no third-party claimant is involved. When a
third party, or stranger to the action asserts a claim
to the property levied upon, he may vindicate his
claim by an independent action and the court therein
may enjoin the execution of the judgment of the other
court (Tay Sun Suy vs. CA, et al, G.R. No. 93640,
Jan. 7, 1994).
d. An injunction suit against the telephone company
(PLDT) which cut off its telephone relay station is within
726
t h e jurisdiction of the r e g u l a r courts, and not of t h e

National Telecommunications Commission, since what is
involved is an alleged breach of contract, with a prayer
for damages, which are judicial questions (Boiser vs. CA,
et al., G.R. No. 61438, June 24, 1983).
e. Formerly, the inferior courts could originally grant
preliminary injunction only in forcible entry cases (Sec.
88, R.A. 296; Art. 539, Civil Code; Sec. 3, Rule 70), but
not in unlawful detainer cases (Piit vs. De Lara, 58 Phil.
766); b u t in unlawful d e t a i n e r cases on a p p e a l , t h e
appellate court may grant preliminary injunction where
the appeal appears to be frivolous or dilatory (see Art. 1674,
Civil Code; Sec. 9, Rule 70).
In other cases, the inferior courts could not issue writs
of preliminary injunction, except t h a t the former City
Courts or municipal courts in capitals of provinces or
sub-provinces may do so in the absence of the District
Judge (Sec. 88, R.A. 296).
See, however, Sec. 33 of B.P. Blg. 129 discussed in
the preliminary portion of this work, regarding the changes
affecting the foregoing doctrines.
2. While preliminary injunction can be challenged
by certiorari, a judgment for permanent injunction should
be the subject of an appeal (Gasilan, et al. vs. Ibanez, et
al., L-19968-69, Oct. 31, 1962).
3. "No t e m p o r a r y or p e r m a n e n t i n j u n c t i o n or
restraining order in any case involving or growing out of
labor disputes shall be issued by any court or other entity
except as otherwise provided in Articles 218 and 264 of
this Code" (Art. 254, P.D. 442, Labor Code, as amended
by B.P. Blg. 227; Pucan, et al. vs. Benson, et al., G.R. No.
74236, Nov. 27, 1987). For injunction and restraining
orders in labor cases, see Arts. 218 and 264 of the Labor
Code and Sec. 13 of Rule XXII, Book V, Omnibus Rules
Implementing the Labor Code. However, where the writ
727
of execution issued by the National Labor Relations

Commission is sought to be enforced upon the property of
a third person, a separate action for injunctive relief
against said levy may be maintained since such action
neither involves nor grows out of a labor dispute inso-
far as the third party is concerned (National Mines &
Allied Workers' Union, et al. vs. Vera, etc., et al., L-44230,
Nov. 19, 1984).
4. "No Court of the Philippines shall have jurisdiction
to issue any restraining order, preliminary injunction or
preliminary mandatory injunction in any case involving
or growing out of the issuance, approval or disapproval,
revocation or suspension of, or any action whatsoever by
the proper administrative official or body on concessions,
licenses, permits, patents, or public grants of any kind or
in connection with the disposition, exploitation, utilization,
exploration and/or development of the natural resources
of the Philippines" (Sec. 1, P.D. 605; see Strong vs. Castro,
et al., G.R. No. 63658, June 29, 1985).
5. A special procedure involving restraining orders
and writs of injunction against financial institutions of
the Government is provided by P.D. 385 which bans
injunctions a g a i n s t foreclosures so t h a t government
financial i n s t i t u t i o n s are not denied cash inflows by
borrowers who resort to court action in order to delay the
collection of their debts by the Government (see Filipinos
Marble Co., Inc. vs. IAC, et al., G.R. No. 68010, May 30,
1986).
6. R.A. 8975, which was enacted on November 7,

2000, provides that no court, except the Supreme Court,
shall issue any temporary restraining order, preliminary
injunction or preliminary mandatory injunction against
the Government, or any person or entity, whether public
or private, acting under the Government's direction, to
restrain or prohibit or compel the acts stated therein which
would adversely affect the expeditious implementation and
728
completion of government infrastructure projects

(Appendix V).
7. The Court of First Instance of a judicial district

can enjoin the sheriff from selling properties levied upon
to satisfy the j u d g m e n t of a Court of First Instance of
a n o t h e r judicial district. Thus, where the p r o p e r t i e s
involved were those of a stranger to the action, the Court
of F i r s t I n s t a n c e of Rizal can validly issue a w r i t of
injunction to prevent the sale thereof which was intended
to satisfy the judgment of the Court of First Instance of
Manila (said courts belonging then to different judicial
districts). This does not constitute an interference with
t h e p r o c e s s e s of a c o u r t of c o o r d i n a t e a n d co-equal
jurisdiction as the sheriff was improperly implementing
the writ of execution (Abiera vs. CA, et al., L-26294,
May 31, 1972; Arabay, Inc. vs. Salvador, et al., L-31077,
Mar. 17, 1978; Santos vs. Sibug, L 26815, May 26, 1981).
8. Jurisdiction over all sequestration cases of ill-

gotten wealth under the Marcos regime falls within the
exclusive and original jurisdiction of the Sandiganbayan,
subject to review exclusively by t h e S u p r e m e Court.
Executive Order No. 1 effectively withholds jurisdiction
over the Presidential Commission on Good Government
from all lower courts, including the Court of Appeals. This
is also to give due recognition to the related doctrines of
p r i m a r y administrative jurisdiction and exhaustion of
administrative remedies as pointed out in the resolution
in Reyes, etc., et al. vs. Caneba, etc., et al. (G.R. No. 82218,
Mar. 17, 1988) which enjoins courts to allow administrative
agencies to carry out their functions and discharge their
responsibilites within their respective competence.
Regional Trial Courts may not interfere with and restrain
or set aside orders and actions of said Commission as the
acts of an administrative agency must not be casually
overturned by a court, and a court should generally not
substitute its judgment for t h a t of said agency acting
729
within the perimeters of its own competence (PCGG vs.

Pena, et al., G.R. No. 77663, April 12, 1988).
S e c 3. Grounds for issuance of preliminary

injunction. — A p r e l i m i n a r y i n j u n c t i o n m a y be
granted w h e n it is e s t a b l i s h e d :
(a) That t h e applicant is e n t i t l e d to t h e relief
d e m a n d e d , a n d t h e w h o l e o r p a r t o f s u c h relief
consists in restraining the commission or con-
t i n u a n c e of t h e a c t or a c t s c o m p l a i n e d of, or in
r e q u i r i n g t h e performance of an act or acts, either
for a limited period or perpetually;
(b) That t h e c o m m i s s i o n , c o n t i n u a n c e or non-
performance of t h e act or acts c o m p l a i n e d of during
the litigation w o u l d probably work injustice to the
applicant; or
(c) That a party, court, a g e n c y or a person is
d o i n g , t h r e a t e n i n g , or is a t t e m p t i n g to do, or is
p r o c u r i n g or suffering to be d o n e , some act or acts
probably in violation of t h e r i g h t s of the applicant
r e s p e c t i n g t h e subject of the a c t i o n or proceeding,
and t e n d i n g to render the j u d g m e n t ineffectual. (3a)
NOTES
1. As a rule, injunction does not lie to restrain the

e n f o r c e m e n t of a law a l l e g e d to be u n c o n s t i t u -
tional except if it will result in injury to rights in private
property (J.M. Tuazon & Co. vs. CA, et al., supra). For
injunction in criminal cases, see the notes under Sec. 1,
Rule 110.
2. Injunction contemplates acts being committed or
about to be committed, hence injunction does not lie against
acts already consummated (Reyes, et al. vs. Harty, 21 Phil.
422; Remonte vs. Bonto, L-19900, Feb. 28, 1966; Romulo
vs. Yniguez, G.R. 71908, Feb. 4, 1986). Even if the acts
730
complained of have already been committed, but such acts

a r e c o n t i n u i n g in n a t u r e and were in d e r o g a t i o n of
plaintiffs rights at the outset, preliminary mandatory
injunction may be availed of to restore the parties to the
status quo (Dayrit vs. De los Santos, 18 Phil. 275). Hence,
the dispossessor in forcible entry can be compelled to restore
possession to the original possessor (see Art. 539, Civil
Code) a n d an e l e c t r i c company can be compelled to
provisionally reconnect the service it had disconnected and
which act is assailed in the main action (Meralco vs. Del
Rosario, etc., et al., 22 Phil. 433).
Sec. 4. Verified application and bond for pre-

liminary injunction or temporary restraining order. — A
preliminary injunction or temporary restraining
o r d e r m a y be g r a n t e d only w h e n :
(a) T h e a p p l i c a t i o n i n t h e a c t i o n o r p r o -
c e e d i n g is verified, a n d shows facts e n t i t l i n g t h e
applicant to the relief demanded; and
(b) U n l e s s e x e m p t e d b y t h e c o u r t , t h e
a p p l i c a n t files w i t h t h e c o u r t w h e r e t h e a c t i o n o r
proceeding is pending, a bond executed to the party
o r p e r s o n e n j o i n e d , i n a n a m o u n t t o b e fixed b y t h e
c o u r t , t o t h e effect t h a t t h e a p p l i c a n t will p a y t o
s u c h p a r t y o r p e r s o n s all d a m a g e s w h i c h h e m a y
sustain by reason of the injunction or t e m p o r a r y
r e s t r a i n i n g o r d e r i f t h e c o u r t s h o u l d finally d e c i d e
t h a t the applicant was not entitled thereto. Upon
a p p r o v a l of t h e requisite bond, a writ of p r e l i m i n a r y
i n j u n c t i o n s h a l l b e i s s u e d . (4a)
(c) W h e n a n a p p l i c a t i o n for a w r i t o f p r e -
liminary injunction or a t e m p o r a r y r e s t r a i n i n g
o r d e r is included in a complaint or any initiatory
p l e a d i n g , t h e c a s e , if filed in a m u l t i p l e - s a l a c o u r t ,
shall be raffled only after notice to a n d in the
presence of the adverse party or the person to be
731
enjoined. In any event, such notice shall be

preceded or contemporaneously accompanied by
service of s u m m o n s , together with a copy of the
complaint or initiatory pleading and the applicant's
affidavits and bond, u p o n the adverse party in the
Philippines.
However, where the s u m m o n s could not be
served personally or by substituted service despite
diligent efforts, or the a d v e r s e party is a resident of
the Philippines temporarily absent therefrom or is
a n o n r e s i d e n t thereof, the r e q u i r e m e n t of prior or
c o n t e m p o r a n e o u s service of s u m m o n s shall not
apply.
(d) T h e a p p l i c a t i o n f o r a t e m p o r a r y r e s t r a i n -
ing o r d e r shall t h e r e a f t e r be a c t e d u p o n o n l y after
all p a r t i e s a r e h e a r d in a s u m m a r y h e a r i n g w h i c h
shall b e c o n d u c t e d w i t h i n t w e n t y - f o u r (24) h o u r s
after the sheriffs return of service and/or the
r e c o r d s a r e r e c e i v e d b y t h e b r a n c h s e l e c t e d b y raffle
and to which the records shall be transmitted
i m m e d i a t e l y , (n)
NOTES
1. Express provisions in these Rules regulating the

issuance of temporary restraining orders were effected by
an a m e n d m e n t introduced by B.P. Blg. 224, effective
April 16, 1982, in Sec. 5 of Rule 58. Prior thereto, the
only extended treatment on restraining orders was found
in R.A. 875, the Industrial Peace Act. Despite the absence
of specific provisions on such an order in the Rules prior
to the aforestated amendment, it has been sanctioned as
part of our judicial system and practice by the Supreme
Court. For that matter, Sec. 6, Rule 135 provides that
"(w)hen by law jurisdiction is conferred on a court or
judicial officer, all auxiliary writs, processes and other
means necessary to carry it into effect may be employed
732
by such court or officer; and if the procedure to be followed

in the exercise of such jurisdiction is not specifically pointed
out by law or by these rules, any suitable process or mode
of proceeding may be adopted which appears conformable
to the spirit of said law or rules."
2. In equity practice in the American jurisdiction, a

restraining order is one which may issue upon the filing
of an a p p l i c a t i o n for an i n j u n c t i o n f o r b i d d i n g t h e
defendant to do t h e threatened act until a hearing on the
application can be had. Though the term is sometimes
used as a synonym of "injunction," a restraining order
is properly distinguishable from an injunction in t h a t the
former is intended only as a restraint upon the defendant
until the propriety of granting an injunction, temporary
or perpetual, can be determined, and it does no more t h a n
restrain the proceedings until such determination (Black's
Law Dictionary, 4th Ed., p. 1247, citing Wetzstein vs.
Boston, etc. Min. Co., 25 Mont. 135, 63 Pac. 1043; Mason
vs. Milligan, 185 Ind. 319, 114 N.E. 3; Labbitt vs. Bunton,
80 Mont. 293, 260 P. 727).
3. The same concept was adopted by our Supreme

Court which explained t h a t it is an order to maintain the
subject of controversy in status quo until the hearing of
an a p p l i c a t i o n for a t e m p o r a r y i n j u n c t i o n . It is
distinguished from an injunction in t h a t it is intended as
a r e s t r a i n t upon the defendant until the propriety of
granting an injunction pendente lite can be determined,
and it goes no further t h a n to preserve the status quo
until such determination. Accordingly, the grant, denial
or lifting of a r e s t r a i n i n g order does not in any way
preempt the court's power to decide the issue in the main
action which is the injunction suit (Anglo-Fil Trading
Corp. vs. Lazaro, G.R. No. 54958, Sept. 2, 1983).
Also, according to the Court of Appeals, a restraining
order, as t h e t e r m connotes, is merely t e m p o r a r y or
provisional. When a restraining order is allowed to last
733
for more than one month, it can no longer be said to be

temporary; and its purpose, which is to maintain the status
quo in the meantime t h a t the petition is to be heard, is
therefore abused. It t h u s acquires the status of semi-
permanence, akin to a preliminary injunction (Simpas vs.
Adil, CA-GR. No. 04406SP, Oct. 28, 1975). Apparently
to u n d e r s c o r e t h a t fact, t h e p r e s e n t p r a c t i c e is to
categorically refer to it as a temporary restraining order.
4. U n d e r t h i s a m e n d e d s e c t i o n , a t e m p o r a r y
restraining order has been elevated to the same level as
a preliminary injunction in the procedure, grounds and
requirements for its obtention. Specifically on the matter
of the requisite bond, the present requirement therefor
not only for a p r e l i m i n a r y injunction but also for a
restraining order, unless exempted therefrom by the court,
p u t s to r e s t a controversial policy which was either
wittingly or unwittingly abused. Heretofore, no bond was
required for the issuance of a temporary restraining order,
except in labor cases brought to the Supreme Court on
certiorari from a decision of the National Labor Relations
Commission where a monetary award was granted, in
which case the policy of the Supreme Court was to require
a bond equivalent to the monetary award or benefits
granted as a condition for the issuance of a temporary
restraining order. The exemption from bond in other cases,
plus t h e fact t h a t no h e a r i n g was required, made a
temporary r e s t r a i n i n g order a much sought relief for
petitioners.
5. There have been instances when the Supreme
Court has issued a status quo order which, as the very
term connotes, is merely intended to maintain the last,
actual, peaceable and uncontested state of things which
preceded the controversy. This was resorted to when the
projected proceedings in the case made the conservation
of the status quo desirable or essential, but the affected
party neither sought such relief nor did the allegations in
734
his pleading sufficiently make out a case for a temporary

restraining order. The status quo order was t h u s issued
motu proprio on equitable considerations. Also, unlike a
temporary restraining order or a preliminary injunction,
a status quo order is more in the n a t u r e of a cease and
desist order, since it does not direct the doing or undoing
of a c t s as in t h e c a s e of p r o h i b i t o r y or m a n d a t o r y
injunctive relief. The further distinction is provided by
the p r e s e n t a m e n d m e n t in t h e sense t h a t , unlike t h e
amended rule on restraining orders, a status quo order
does not require the posting of a bond.
6. P a r s , (a) and (b) of this amended section were

taken from the original Sec. 4 of this Rule, with the addition
to their coverage of temporary restraining orders. With
respect to Par. (b), a further modification provides for the
situation where, in proper cases, the court may exempt
the applicant from filing the bond normally required.
Pars, (c) and (d) were taken from P a r s . 1 and 2 of
Administrative Circular No. 20-95, providing special rules
for t e m p o r a r y r e s t r a i n i n g o r d e r s a n d p r e l i m i n a r y
injunctions, effective October 1, 1995. This contemplates
a complaint or other initiatory pleading where an
a p p l i c a t i o n for a w r i t of p r e l i m i n a r y injunction or a
t e m p o r a r y r e s t r a i n i n g order is included t h e r e i n , and
prescribes the procedure to be followed by the executive
judge.
If it is a multiple-sala court, notice shall be given to
the adverse party or the person to be enjoined and their
presence is required before the case may be raffled. In
addition thereto, just as in levy on preliminary attachment,
there must be proof of prior or contemporaneous service
of summons with a copy of the complaint or initiatory
pleading and applicant's affidavit and bond on the adverse
p a r t y , u n l e s s t h e same could not be served on t h e m
personally or by substituted service for the reasons stated
in this section.
735
After the raffle, the records of the case shall be

immediately transmitted to the branch selected, which
shall conduct a summary hearing within 24 hours from
the sheriffs return of service to all the parties who
shall be heard therein. While this section does not
explicitly say so, unlike Par. 4 of Administrative Circular
No. 20-95, the same procedure shall be followed in single-
sala stations, except those applicable only to multiple-sala
stations such as the need and requisites for conducting a
raffle of the case.
Sec. 6. Preliminary injunction not granted without

notice; exception. — No p r e l i m i n a r y injunction shall
be g r a n t e d w i t h o u t h e a r i n g and prior notice to the
party or p e r s o n s o u g h t to be enjoined. If it shall
a p p e a r from facts s h o w n by affidavits or by the
verified a p p l i c a t i o n that great or irreparable injury
w o u l d r e s u l t t o t h e a p p l i c a n t before t h e m a t t e r
can be heard on notice, the court to w h i c h the
a p p l i c a t i o n for p r e l i m i n a r y i n j u n c t i o n w a s made,
may i s s u e ex parte a t e m p o r a r y r e s t r a i n i n g order
to be effective only for a period of t w e n t y (20) days
from s e r v i c e on t h e party or p e r s o n s o u g h t to be
enjoined, e x c e p t as h e r e i n provided. Within the
twenty-day period, t h e court m u s t order said party
or p e r s o n to s h o w c a u s e , at a specified time and
place, w h y t h e i n j u n c t i o n s s h o u l d not be granted.
The court shall a l s o d e t e r m i n e , w i t h i n t h e same
period, w h e t h e r or not t h e p r e l i m i n a r y injuction
shall be granted, and accordingly issue the
c o r r e s p o n d i n g order.
However, subject to the provisions of the
preceding sections, if the matter is of extreme
urgency and the applicant will suffer grave
injustice and irreparable injury, the executive judge
of a multiple sala court or the p r e s i d i n g j u d g e of a
single-sala court may i s s u e ex parte a t e m p o r a r y
736
r e s t r a i n i n g o r d e r effective for o n l y s e v e n t y - t w o (72)

hours next preceding section as to service of
summons and the documents to be served therewith.
T h e r e a f t e r , w i t h i n t h e a f o r e s a i d s e v e n t y - t w o (72)
h o u r s , t h e j u d g e before w h o m t h e case is p e n d i n g
shall conduct a summary hearing to determine
w h e t h e r the temporary restraining order shall be
e x t e n d e d u n t i l t h e a p p l i c a t i o n for p r e l i m i n a r y
injunction can be heard. In no case shall the total
period of effectivity of t h e t e m p o r a r y r e s t r a i n i n g
o r d e r e x c e e d t w e n t y (20) d a y s , i n c l u d i n g t h e o r i g i n a l
s e v e n t y - t w o (72) h o u r s p r o v i d e d h e r e i n .
I n t h e e v e n t t h a t t h e a p p l i c a t i o n for p r e l i m -
inary injunction is denied or not resolved within
the said period, t h e t e m p o r a r y r e s t r a i n i n g o r d e r is
d e e m e d a u t o m a t i c a l l y vacated. The effectivity of a
temporary restraining order is not extendible
without need of any judicial declaration to that
effect, a n d n o c o u r t s h a l l h a v e a u t h o r i t y t o e x t e n d
o r r e n e w t h e s a m e o n t h e s a m e g r o u n d for w h i c h i t
was issued.
H o w e v e r , if i s s u e d b y t h e C o u r t of A p p e a l s or a
m e m b e r thereof, t h e t e m p o r a r y r e s t r a i n i n g o r d e r
s h a l l b e e f f e c t i v e for s i x t y (60) d a y s f r o m s e r v i c e o n
the p a r t y or person sought to be enjoined. A
r e s t r a i n i n g o r d e r issued by the Supreme Court or a
m e m b e r t h e r e o f shall be effective u n t i l f u r t h e r
orders.
The trial court, the Court of Appeals, the
S a n d i g a n b a y a n or the Court of Tax Appeals t h a t
i s s u e d a w r i t of p r e l i m i n a r y i n j u c t i o n a g a i n s t a l o w e r
c o u r t , b o a r d , officer, o r q u a s i - j u d i c i a l a g e n c y s h a l l
d e c i d e t h e m a i n c a s e o r p e t i t i o n w i t h i n s i x (6)
m o n t h s f r o m t h e i s s u a n c e of t h e w r i t . (As amended
in A.M. No. 07-7-12-SC, effective Dec. 27, 2007)
737
NOTES
1. Formerly, if an ex parte injunction was not proper,

a restraining order may be availed of in the meantime.
While the Rules t h e n made no specific provisions for
restraining orders, the same were deemed to be within
the inherent powers of the court (see Sec. 5, Rule 135).
As amended by B.P. Blg. 224, Sec. 5 also provided for and
regulated the issuance of restraining orders to maintain
the status quo until the hearing of the application for
temporary injunction. No bond was required for the
issuance of a restraining order to maintain the status quo
u n t i l t h e h e a r i n g of t h e a p p l i c a t i o n for t e m p o r a r y
injunction. No bond was required for the issuance of a
restraining order (BF Homes, Inc. vs. CA, et al., L-30690,
Nov. 19, 1982). See the discussion thereon in Dionisio,
et al. vs. CFI, et al. (G.R. No. 61048, Aug. 17, 1983), and
Par. 8 of the I n t e r i m Rules which incorporated such
amendment in toto (cf. Ortigas & Co. vs. Ruiz, et al.,
L-33952, Mar. 9, 1987). The 20-day period of efficacy of
a temporary restraining order was non-extendible; the
order automatically terminated at the end of such period
without the need of any judicial declaration to that effect
and the courts had no discretion to extend the same
(Golden Gate Realty Corp. vs. IAC, et al., G.R. No. 74289,
July 31, 1987).
2. This amended section retains most of the foregoing

features but with some modifications and exceptions to
the general provisions of Sec. 4. The limited period of the
effectivity of the restraining order in the trial courts
remains the same but the period for such orders issued by
the Court of Appeals has been increased to 60 days. It
had formerly b e e n held t h a t t h e 20-day limit also
applied to said appellate court (Delbros Hotel Corp. vs.
IAC, et al., G.R. No. 72566, April 12, 1988; Laviha, et al.
vs. CA.etal, G.R. Nos. 78285 una 79917, April 10, 1989).
Such limited period did not and does not apply to the
738
Supreme Court and its temporary restraining orders shall

be effective unless and until it directs otherwise.
Also, the rule against non-extendibility of the limited
periods of effectivity of the order is maintained for all
courts covered thereby. However, the prohibition against
the renewal of the order applies only if the same is sought
under and by reason of the same ground for which it was
originally issued. If a new ground supervenes while the
original period still subsists or after it has terminated,
which t h e court finds to be different from the original
ground but sufficient to w a r r a n t the same restraint, it may
renew the original restraining order or issue another one,
as the case may be, but also subject to the same limited
periods of effectivity and terms.
3. T h e second p a r a g r a p h , which w a s P a r . 3 of
Administrative Circular No. 20-95, is an exception to the
preceding rule, to enable the court to respond to a m a t t e r
of extreme urgency wherein the applicant will suffer grave
injustice and irreparable injury. The executive judge of
a multiple-sala court, or the presiding judge of a single-
sala court, is empowered to issue ex parte a temporary
restraining order but (1) it shall be effective for only 72
h o u r s , (2) he s h a l l i m m e d i a t e l y comply w i t h Sec. 4
regarding service of summons and accompanying
documents, and (3) he shall conduct a summary hearing
within said 72 hours to determine whether the restraining
o r d e r s h a l l b e e x t e n d e d u n t i l t h e a p p l i c a t i o n for
preliminary injunction can be heard.
4. It will be noted t h a t , as a rule, t h e period of

effectivity of a temporary restraining order is 20 days from
notice to the party or person to be enjoined. In the special
situation under the second paragraph of this section, the
20-day period is also maintained with the specification that
the original 72 hours shall be included therein. Since
the original 72 hours is reckoned from its issuance, it
results t h a t in this situation contemplated in the second
739
RULE 68 R E M E D I A L LAW C O M P E N D I U M SEC S
paragraph, the 20-day period shall be computed from the

date of issuance of the temporary restraining order, and
not the date of its receipt by the adverse party or person
sought to be enjoined. After all, the antecedents and fact
of issuance will be readily known by the parties during
the hearing required to be conducted within said 72 hours.
5. Injury is considered "irreparable" if it is of such
c o n s t a n t a n d f r e q u e n t r e c u r r e n c e t h a t n o fair o r
reasonable redress can be had therefor in a court of law
(Ollendorff vs. Abrahamson, 38 Phil. 585), or where there
is no standard by which their amount can be measured
with reasonable accuracy, t h a t is, it is not susceptible of
m a t h e m a t i c a l computation (SSC vs. Bayona, et al.,
L-13555, May 30, 1962).
6. In an action for prohibition with preliminary
injunction against a judge alone to prevent him from trying
a criminal case for illegal possession of explosives, the
posting of a bond by plaintiff is not required since no
private party will be prejudiced (Lim vs. Callejo, L-27086,
July 24, 1981).
7. A restraining order, like an injunction, operates
upon a person and has no in rem effect to invalidate an
action done in contempt of a court order, except where by
statutory authorization the decree is so framed as to act
in rem on property (Auyong Hian vs. CTA, et al., L-28782,
Sept. 12, 1974).
8. The amount of the bond required for the issuance
of a w r i t of p r e l i m i n a r y injunction, and s u b s e q u e n t
reductions in the amount thereof, are addressed to the
sound discretion of the court and will not be interfered
with absent a showing of grave abuse of discretion (San
Miguel, et al. vs. Elbinias, et al, L-48210, Jan. 31, 1984).
The same rule should apply to restraining orders.
740
RULE 58 PRELIMINARY INJUNCTION S E C S . 6-7
Sec. 6. Grounds for objection to, or for motion of

dissolution of, injunction or restraining order. — T h e
a p p l i c a t i o n for i n j u n c t i o n or r e s t r a i n i n g o r d e r m a y
be d e n i e d , u p o n a s h o w i n g of its insufficiency. The
i n j u n c t i o n or r e s t r a i n i n g order may a l s o be d e n i e d ,
or, if g r a n t e d , m a y be d i s s o l v e d , on o t h e r g r o u n d s
upon affidavits of the party or person enjoined,
which may be opposed by the applicant also by
affidavits. It m a y further be d e n i e d , or, if g r a n t e d ,
m a y be d i s s o l v e d , if it a p p e a r s after h e a r i n g t h a t
although the applicant is entitled to the injunction
o r r e s t r a i n i n g order, t h e i s s u a n c e o r c o n t i n u a n c e
thereof, as t h e c a s e may be, w o u l d c a u s e irreparable
d a m a g e t o t h e party o r p e r s o n e n j o i n e d w h i l e t h e
a p p l i c a n t c a n b e fully c o m p e n s a t e d for s u c h
d a m a g e s as he may suffer, and the former files a bond
in an a m o u n t fixed by t h e court c o n d i t i o n e d t h a t
h e will pay all d a m a g e s w h i c h t h e a p p l i c a n t m a y
suffer by the denial or the dissolution of the
i n j u n c t i o n or r e s t r a i n i n g order. If it a p p e a r s t h a t
the extent of the preliminary injunction or
r e s t r a i n i n g o r d e r g r a n t e d is t o o g r e a t , it m a y be
modified. (6a)
Sec. 7. Service of copies of bonds; effect of disapproval

of same. — The party filing a bond in a c c o r d a n c e
w i t h t h e p r o v i s i o n s o f t h i s Rule s h a l l f o r t h w i t h
serve a c o p y of s u c h bond on t h e o t h e r party, w h o
may e x c e p t to t h e sufficiency of t h e bond, or of t h e
surety or s u r e t i e s t h e r e o n . If t h e applicant's bond
is found to be insufficient in amount, or if the surety
o r s u r e t i e s t h e r e o n fail t o j u s t i f y , a n d a b o n d
sufficient in amount with sufficient sureties
a p p r o v e d after justification is not filed forthwith,
t h e i n j u n c t i o n shall be dissolved. If t h e bond of the
a d v e r s e party is found to be insufficient in a m o u n t ,
or t h e s u r e t y or s u r e t i e s t h e r e o n fail to justify a
bond sufficient in a m o u n t with sufficient s u r e t i e s
741
approved after justification is not filed forthwith,

the injunction shall be granted or restored, as the
case may be. (8a)
NOTES
1. Injunction, under these sections, may be refused

or dissolved if:
(a) The complaint is insufficient;
(b) The defendant is permitted to post a counter-bond,
it appearing t h a t he would sustain great damage while
the plaintiff can be amply compensated; and/or
(c) On other grounds, as where the bond posted by
the applicant turned out to be insufficient or defective.
2. The filing of a counter-bond does not necessarily
warrant dissolution of the injunction as the court has to
assess the probable relative damages (Director of the
Bureau of Telecommunications vs. Aligaen, L-31135,
May 29, 1970).
3. A m o t i o n for t h e d i s s o l u t i o n of t h e w r i t of
p r e l i m i n a r y injunction m u s t be verified (Canlas vs.
Aquino, L-16815, July 24, 1961).
Sec. 8. Judgment to include damages against party

and sureties. — At t h e trial, t h e a m o u n t of d a m a g e s
to be a w a r d e d to e i t h e r party, u p o n t h e bond of the
a d v e r s e party, shall be c l a i m e d , a s c e r t a i n e d , and
a w a r d e d u n d e r t h e same p r o c e d u r e prescribed in
section 20 of Rule 67. (9a)
NOTES
1. The procedure for claiming damages on the bond

is the same as that in preliminary attachment (see notes
under Sec. 20, Rule 57; cf. Luzon Surety Co., Inc. vs.
Guerrero, L 20705, June 20, 1966).
742
2. Recovery of d a m a g e s for i r r e g u l a r issuance of

injunction, as where the main case is dismissed and the
injunction is dissolved, is limited to the amount of the bond.
Malice or lack of good faith on the p a r t of the party who
procured the injunction which was later dissolved is not
required as a prerequisite for recovery by the injured party
on said bond (Aquino vs. Socorro, L-23868, Oct. 22, 1970).
If t h e r e was malice, there is a right of action in a civil case
for malicious prosecution (Molina vs. Somes, 24 Phil. 66,
reiterated in Aquino vs. Socorro, supra).
3. Where t h e bond was posted for the purpose of

securing a writ of preliminary injunction in a prohibition
case instituted against a judge for his refusal to inhibit
himself from trying a criminal case for illegal possession
of explosives, no claim for damages can be assessed against
said bond, t h e r e being no private party who would be
prejudiced, and any damage or expense incurred by the
judge in connection with the case would be official in
n a t u r e and for which no fund of private origin has to
answer (him vs. Callejo, supra).
4. See Sec. 4, Rule 39 regarding the effect of an
appeal from a judgment in an action for injunction and
the powers of the trial court during the pendency of such
appeal.
For the text of Sec. 9 of this Rule, see Sec. 1, ante,
u n d e r w h i c h t h e f o r m e r h a s b e e n t r a n s p o s e d for
complementary reading.
743
R U L E 59
RECEIVERSHIP
S e c t i o n 1. Appointment of receiver. — U p o n a
verified application, one or more receivers of the
property which is the subject of the action or
p r o c e e d i n g may be a p p o i n t e d by the Court of
A p p e a l s or by t h e S u p r e m e Court, or a m e m b e r
thereof, in the following cases:
(a) When it a p p e a r s from the verified appli-
c a t i o n , a n d s u c h o t h e r p r o o f a s t h e c o u r t may
require, that the party applying for the appointment
of a r e c e i v e r h a s an i n t e r e s t in the property or fund
w h i c h is the subject of t h e a c t i o n or proceeding,
a n d t h a t s u c h p r o p e r t y or fund is in d a n g e r of
being lost, r e m o v e d , or materially injured u n l e s s a
receiver be a p p o i n t e d to a d m i n i s t e r and preserve
it;
(b) W h e n i t a p p e a r s i n a n a c t i o n b y t h e
m o r t g a g e e for foreclosure of a m o r t g a g e that the
property is in danger of being dissipated or
materially injured, and t h a t its value is probably
insufficient to d i s c h a r g e t h e mortgage debt, or that
t h e p a r t i e s h a v e so s t i p u l a t e d in t h e c o n t r a c t of
mortgage;
(c) After j u d g m e n t , to preserve the property
d u r i n g the p e n d e n c y of an appeal, or to d i s p o s e of
it a c c o r d i n g to the j u d g m e n t , or to aid e x e c u t i o n
w h e n t h e e x e c u t i o n has been returned unsatisfied
or the j u d g m e n t obligor refuses to apply his
property in satisfaction of the judgment, or
o t h e r w i s e to carry the j u d g m e n t into effect;
(d) W h e n e v e r i n o t h e r c a s e s i t a p p e a r s
that the a p p o i n t m e n t of a receiver is the most
c o n v e n i e n t and feasible m e a n s of preserving,
744
RULE 59 RECEIVERSHIP SEC. 1
administering, or disposing of the property in

litigation.
During the pendency of an appeal, the
a p p e l l a t e c o u r t m a y a l l o w a n a p p l i c a t i o n for t h e
a p p o i n t m e n t of a r e c e i v e r to be filed in a n d d e c i d e d
by t h e c o u r t of o r i g i n and t h e r e c e i v e r a p p o i n t e d to
be s u b j e c t to t h e c o n t r o l of said court, ( l a )
NOTES
1. The former Par. (a) of Sec. 1 of this Rule, which

referred to receivership when a corporation has been
dissolved or is insolvent and so forth, has been deleted
from this amended section as such situations are now
governed by the Corporation Code. For the same reason,
the former Sec. 2 of this Rule regarding an application by
a creditor or stockholder for receivership over a corporation
has not been reproduced here.
2. Receivership, like injunction, may be the principal
action itself (see Sec. 4, Rule 39) or just an ancillary remedy
if a principal action is indicated under the circumstances
of the case since, generally, the courts and quasi-judicial
agencies may appoint receivers in cases pending before
them.
3. A receiver is a person appointed by the court in
behalf of all the parties to an action for the purpose of
preserving the property involved in the suit and to pro-
tect the rights of all the parties under the direction of the
court (see Cia. General de Tabacos vs. Guanzon, 20 Phil.
216; Normandy vs. Duque, L-25407, Aug. 29, 1969;
Mallari vs. CA, et al, L-26467, July 15, 1981). As a rule,
a party to a litigation should not be appointed as a receiver
without the consent of the other parties thereto (Alcantara
vs. Abbas, L-14890, Sept. 30, 1963). A clerk of court should
not be appointed as a receiver as he is already burdened
with his official duties (Abrigo vs. Kayanan, L-28601,
Mar. 28, 1983).
745
4. While the perfection of an appeal deprives the trial

court of jurisdiction over the case, the trial court can
appoint a receiver since this does not involve any matter
litigated by the appeal. While the Supreme Court has
jurisdiction to appoint a receiver, the trial court has the
better facilities and opportunity to determine the property
under receivership (Velasco & Co. vs. Go Chuico, et al.,
28 Phil. 39). Also, despite such appeal, the trial court
retains the power to issue orders for the protection and
preservation of the rights of the parties (Sec. 9, Rule 41).
This situation is now specifically dealt with by the
last paragraph of this amended Sec. 1 which provides that
the appellate court may allow the application for the
appointment of a receiver to be filed in and decided by the
court a quo which shall also have control over such
receiver.
5. Where the action is merely to obtain a money
judgment on unpaid credits and not to enforce a lien upon
specific p r o p e r t y or funds in t h e possession of t h e
defendant, the appointment of a receiver is improper
(Bonaplata vs. Ambler, et al., 2 Phil. 392; Arez, et al. vs.
Wislizenus, et al., 26 Phil. 625). Also in actions involving
possession of or title to real property, the appointment of
a receiver may be made only if there is a clear necessity to
protect the applicant from grave or irremediable damages
(Medel, et al. vs. De Aquino, et al., 92 Phil. 895; Camiling
vs. De Aquino, 103 Phil. 128). Appointment of a receiver
is not proper where the rights of the parties, one of whom
is in p o s s e s s i o n of t h e p r o p e r t y , d e p e n d on t h e
determination of their respective claims to the title of such
property (Calo, et al. vs. Roldan, 76 Phil. 445), unless
such property is in danger of being materially injured or
lost, as by the prospective foreclosure of a mortgage
thereon or portions thereof are being occupied by third
persons claiming adverse title thereto (Motomull vs.
Arrieta, L-15972, May 31, 1963).
746
RULE 59 RECEIVERSHIP SEC. 1
6. A proceeding for the appointment of a receiver was

formerly commenced by a verified petition and not by
motion. Such petition should allege all the necessary
facts j u s t i f y i n g t h e a p p o i n t m e n t of a receiver, w i t h
supporting affidavits. A defect in the procedure does not
affect t h e j u r i s d i c t i o n of t h e court b u t w a r r a n t s t h e
dismissal of the application (Velasco & Co. vs. Go Chuico,
et al, supra; Medel, et al. vs. De Aquino, et al., supra). As
amended, this section would now allow a verified motion
to be filed w h e r e t h e receivership s o u g h t is only an
incident in the main action.
7. Formerly, city courts and municipal courts in

provincial and sub-provincial capitals had jurisdiction to
appoint a receiver in the absence of the District Judge
(Sec. 88, R.A. 296). Under B.P. Blg. 129, all inferior courts
now have jurisdiction to appoint a receiver if the main
case is within their jurisdiction (Sec. 33).
8. Unlike the other provisional remedies which can
be availed of only before final judgment, receivership may
be resorted to even after the judgment has become final
and executory. Thus, under Sec. 1(d), it can be availed
of to aid execution or to carry the judgment into effect
(see Sec. 41, Rule 39).
9. The appointment of a receiver during the pendency
of the action is interlocutory in n a t u r e and cannot be
compelled by mandamus, but certiorari will lie if there was
grave abuse of discretion (Samson vs. Barrios, 63 Phil.
199; Berbari vs. Imperial, et al, 43 Phil 222).
Sec. 2. Bond on appointment of receiver. — Before

i s s u i n g t h e order a p p o i n t i n g a receiver, t h e court
shall r e q u i r e t h e a p p l i c a n t to file a bond e x e c u t e d
to the party against whom the application is
p r e s e n t e d , in an a m o u n t to be fixed by t h e court, to
t h e effect t h a t t h e a p p l i c a n t will pay s u c h party all
747
d a m a g e s he may s u s t a i n by r e a s o n of t h e appoint-
ment of such r e c e i v e r in c a s e t h e a p p l i c a n t shall
have procured such a p p o i n t m e n t w i t h o u t sufficient
cause; and the court may, in its discretion, at any
time after the a p p o i n t m e n t , require an additional
bond as further security for s u c h d a m a g e s . (3a)
NOTE
1. Under the former Rule, a bond for the appoint-

ment of a receiver was not generally required of the
applicant, except when the application was made ex parte.
No such distinction is made under this amended section
and a bond shall always be required from the applicant.
In fact, an additional bond may subsequently be required
by the court in the exercise of its sound discretion in light
of developments in the case.
Sec. 3. Denial of application or discharge of receiver.

— The a p p l i c a t i o n may be d e n i e d , or t h e receiver
d i s c h a r g e d , w h e n t h e a d v e r s e party files a bond
e x e c u t e d to the applicant, in an a m o u n t to be fixed
by the court, to the effect t h a t s u c h party will pay
the a p p l i c a n t all d a m a g e s he may suffer by reason
of the acts, o m i s s i o n s , or other m a t t e r s specified in
the a p p l i c a t i o n as g r o u n d for s u c h a p p o i n t m e n t .
The r e c e i v e r may also be d i s c h a r g e d if it is s h o w n
that his appointment was obtained without
sufficient c a u s e . (4a)
Sec. 4. Oath and bond of receiver. — B e f o r e

entering upon his duties, the receiver shall be sworn
to perform t h e m faithfully, and shall file a bond,
e x e c u t e d t o s u c h p e r s o n and i n s u c h s u m a s the
court may direct, to the effect t h a t he will faithfully
d i s c h a r g e h i s d u t i e s i n t h e a c t i o n and o b e y the
orders of the court. (5a)
748
RULE 59 RECEIVERSHIP S E C S . 5, 6
Sec. 6. Service of copies of bonds; effect of disap-

proval of same. — T h e p e r s o n f i l i n g a b o n d in
accordance with the provisions of this Rule shall
f o r t h w i t h serve a copy of such bond on each
i n t e r e s t e d p a r t y , w h o m a y except to its sufficiency
or of the surety or sureties thereon. If either the
applicant's or t h e receiver's bond is found to be
insufficient in amount, or if the surety or sureties
t h e r e o n fail t o j u s t i f y a n d a b o n d s u f f i c i e n t i n
a m o u n t with sufficient sureties approved after
j u s t i f i c a t i o n i s n o t filed f o r t h w i t h , t h e a p p l i c a t i o n
shall be denied, or the receiver discharged, as the
case m a y be. If t h e bond of t h e a d v e r s e p a r t y is
found to be insufficient in a m o u n t or t h e surety or
s u r e t i e s t h e r e o n fail t o j u s t i f y , a n d a b o n d s u f f i c i e n t
in a m o u n t with sufficient sureties a p p r o v e d after
j u s t i f i c a t i o n i s n o t filed f o r t h w i t h , t h e r e c e i v e r s h a l l
be a p p o i n t e d or re-appointed, as t h e case m a y be.
(6a)
NOTE
1. A receivership may be denied or lifted (a) if the

appointment sought or granted is without sufficient cause,
as were there is no necessity therefor or it is not a proper
case for receivership, (b) if the adverse p a r t y files a
sufficient bond to answer for damages, (c) where the bond
posted by the applicant for the grant of receivership is
insufficient, or (d) if the bond of the receiver is insufficient.
S e c . 6. General powers of receiver. — S u b j e c t to t h e

control of the court in which the action is pending,
a receiver shall have the power to bring and defend,
in such capacity, actions in his own name; to take
and keep possession of the property in controversy;
to receive rents; to collect debts due to himself
a s r e c e i v e r o r t o t h e fund, p r o p e r t y , e s t a t e , p e r s o n ,
or c o r p o r a t i o n of which he is the receiver; to
749
c o m p o u n d for and compromise t h e same; to make

transfers; to pay o u t s t a n d i n g debts; to divide the
money and other property that shall remain among
the p e r s o n s legally entitled to receive the same; and
generally to do s u c h acts r e s p e c t i n g t h e property
as the court may authorize. However, funds in the
hands of a receiver may be i n v e s t e d only by order
o f t h e c o u r t u p o n t h e w r i t t e n c o n s e n t o f all the
parties to the action. (7a)
No action may be filed by or against a receiver
w i t h o u t leave of the court w h i c h appointed him. (n)
NOTES
1. This is another instance where a person who is

not the real party in interest is authorized to sue as a
representative party under Sec. 3, Rule 3.
2. Receivership cannot be effected with respect to
property in custodia legis (Lizarraga Hnos. vs. Abada, 40
Phil. 124), but where the property in the custody of an
administrator or executor is in danger of imminent loss or
injury, a receiver thereover may be appointed by the
probate court (Dolor vs. Sindian, L-27631, April 30, 1971).
3. Contracts executed by a receiver without the
approval of the court constitute his personal undertakings
a n d o b l i g a t i o n s (Pacific Merchandising Corp. vs.
Consolacion Insurance & Surety Co., Inc., et al., L-30204,
Oct. 29, 1976).
4. The last paragraph requiring leave of court for
all suits by or against the receiver has been added in order
to enhance the supervisory power and control by the court
over the performance by the receiver of his duties, and to
forestall any u n d u e i n t e r f e r e n c e t h e r e w i t h t h r o u g h
improvident suits.
750
RULE 59 RECEIVERSHIP S E C S . 7, 8
Sec. 7. Liability for refusal or neglect to deliver

property to receiver. — A person w h o refuses or n e g l e c t s ,
upon reasonable demand, to deliver to the receiver
all t h e p r o p e r t y , m o n e y , books, d e e d s , n o t e s , bills,
d o c u m e n t s a n d p a p e r s w i t h i n h i s p o w e r o r control,
s u b j e c t of or i n v o l v e d in t h e a c t i o n , or in c a s e of
disagreement, as determined and ordered by the
court, m a y be p u n i s h e d for c o n t e m p t and s h a l l be
liable to t h e r e c e i v e r for t h e m o n e y or t h e v a l u e of
the property and other things so refused or neg-
l e c t e d t o b e s u r r e n d e r e d , t o g e t h e r w i t h all d a m a g e s
t h a t m a y h a v e b e e n s u s t a i n e d by the party or parties
e n t i t l e d t h e r e t o as a c o n s e q u e n c e of s u c h refusal
or n e g l e c t , (n)
NOTE
1. T h e s e s a n c t i o n s , c o n t e m p t and d a m a g e s , a r e
considered necessary and justified to obviate t h e dis-
respectful practice of those who would trifle with court
orders by withholding cooperation from the receiver,
intentionally or through neglect. Contempt proceedings,
direct or indirect, depending on the acts committed, provide
a more expeditious mode of resolving disputes over property
sought to be placed under receivership unless the
controversy actually calls for a civil action to resolve the
issue of ownership or possession. Since, as noted earlier,
the receiver legally represents all the parties to the action,
the damages arising from refusal or neglect to surrender
to him the properties to be placed under his management
shall inure in favor of said parties.
Sec. 8. Termination of receivership; compensation of

receiver. — W h e n e v e r the court, motu proprio or on
m o t i o n o f e i t h e r party, s h a l l d e t e r m i n e t h a t t h e
n e c e s s i t y for a r e c e i v e r no longer e x i s t s , it shall,
after due n o t i c e to all i n t e r e s t e d p a r t i e s and
h e a r i n g , settle the a c c o u n t s of the receiver, direct
751
the delivery of the funds and o t h e r property in his

p o s s e s s i o n to t h e person adjudged to be entitled to
r e c e i v e t h e m , and o r d e r t h e d i s c h a r g e of the
receiver from further duty as s u c h . The court shall
allow t h e r e c e i v e r s u c h r e a s o n a b l e c o m p e n s a t i o n
as t h e c i r c u m s t a n c e s of t h e c a s e w a r r a n t , to be
taxed as costs against the defeated party, or
a p p o r t i o n e d , as j u s t i c e requires. (8a)
Sec. 9. Judgment to include recovery against sureties.

— The a m o u n t , if any, to be a w a r d e d to any
party u p o n any bond filed in a c c o r d a n c e with
the provisions of this Rule, shall be claimed,
a s c e r t a i n e d , and granted under the same procedure
as prescribed in s e c t i o n 20 of Rule 57. (9a)
NOTES
1. See notes under Sec. 20, Rule 57.

2. Where, however, the damages sustained were not
by reason of the appointment of the receiver but due to
the receiver's own malfeasance, the recovery for damages
shall be against the bond of the receiver and may be
recovered in a separate action, and not by mere motion in
the case wherein the receivership was granted (De la Rosa
& Co. vs. De Borja, 53 Phil. 990).
3. A judgment in a receivership action shall not be
stayed after its rendition and before an appeal is taken or
d u r i n g the pendency of an appeal, unless otherwise
ordered by the court (Sec. 4, Rule 39).
752
RULE 60
REPLEVIN
S e c t i o n 1. Application. — A p a r t y p r a y i n g for
the recovery of possession of personal property
may, at the commencement of the action or at any
t i m e b e f o r e a n s w e r , a p p l y for a n o r d e r for t h e
delivery of such property to him, in the m a n n e r
hereinafter provided, (la)
NOTES
1. This provisional remedy of replevin is available

where the principal purpose of the action is to recover the
possession of personal property. Where proper, replevin
m u s t be a p p l i e d for before t h e a n s w e r ; a t t a c h m e n t ,
injunction and support pendente lite, at any time before
final judgment; and receivership, at any stage of the action
and even after final judgment.
2. Under Sec. 1(c), Rule 57, the writ of preliminary
a t t a c h m e n t is a v a i l a b l e in an action to recover t h e
possession of personal property unjustly detained, which
would make it similar to a replevin proceeding. However,
the two remedies are distinguishable as follows:
a. Replevin is available only where the principal
relief sought in the action is the recovery of possession of
personal property, the other reliefs, like damages, being
merely incidental thereto; attachment is available even if
the recovery of personal property is only an incidental relief
sought in the action.
b. Replevin can be sought only where the defendant
is in the actual or constructive possession of the personalty
involved, while attachment may be resorted to even if the
personal property is in the custody of a third person.
753
c. Replevin extends only to personal property capable

of manual delivery, while attachment extends to all kinds
of property w h e t h e r real, personal or incorporeal
(Machinery & Engineering Supplier, Inc. vs. CA, et al.,
96 Phil. 70).
d. Replevin is available to recover personal property
even if the same is not being concealed, removed or
disposed of, while attachment to recover the possession of
personal property unjustly detained presupposes that the
same is being concealed, removed or disposed of to prevent
its being found or taken by the applicant.
e. Replevin cannot be availed of if the property is in
custodia legis, as where it is under attachment (Montesa
vs. Manila Cordage Co., 92 Phil. 25) or was seized under
a search w a r r a n t (Pagkalinawan vs. Gomez, L-22585,
Dec. 18, 1967; Sec. 2[c] of this Rule), while attachment
can still be resorted to even if the property is in custodia
legis (Sec. 7, Rule 57, last par.).
3. While Sec. 1 of this Rule formerly provided for
the writ of replevin at the instance of the plaintiff, the
same provisional remedy was held to be available to the
d e f e n d a n t on his c o u n t e r c l a i m (Pongos vs. Hidalgo
Enterprises, Inc., 84 Phil. 499) and to any other party
asserting affirmative allegations praying for the recovery
of personal property unjustly detained. Sec. 1 has been
accordingly amended.
Sec. 2. Affidavit and bond. — T h e a p p l i c a n t m u s t

show by his own affidavit or t h a t of some other
p e r s o n w h o p e r s o n a l l y k n o w s t h e facts:
(a) T h a t t h e a p p l i c a n t i s t h e o w n e r o f t h e
p r o p e r t y c l a i m e d , p a r t i c u l a r l y d e s c r i b i n g it, o r i s
entitled to t h e possession thereof;
(b) T h a t t h e p r o p e r t y i s w r o n g f u l l y d e t a i n e d
by the adverse party, alleging the cause of detention
754
RULE 60 REPLEVIN SEC. 3
thereof according to the best of his knowledge,

i n f o r m a t i o n , a n d belief;
(c) T h a t t h e p r o p e r t y h a s not b e e n d i s t r a i n e d
or t a k e n for a tax a s s e s s m e n t or a fine p u r s u a n t to
l a w , or s e i z e d u n d e r a w r i t of e x e c u t i o n or p r e -
liminary attachment, or otherwise placed under
custodia legis, or if so s e i z e d , t h a t it is e x e m p t or
s h o u l d be r e l e a s e d from s u c h seizure or custody; and
(d) The a c t u a l m a r k e t v a l u e of t h e property.
T h e a p p l i c a n t m u s t a l s o give a bond, e x e c u t e d
to the adverse party in double the value of the
p r o p e r t y a s s t a t e d i n t h e affidavit a f o r e m e n t i o n e d ,
for t h e r e t u r n o f t h e p r o p e r t y t o t h e a d v e r s e party
i f t h e r e t u r n t h e r e o f b e a d j u d g e d , a n d for t h e
p a y m e n t t o t h e a d v e r s e party o f s u c h s u m a s h e m a y
r e c o v e r from t h e a p p l i c a n t in t h e a c t i o n . (2a)
NOTE
1. In replevin, the bond to be posted by the applicant

must be double the value of the property sought to be
recovered; in attachment, the bond is in such amount as
may be fixed by the court, not exceeding the applicant's
claim or equal to the value of the property to be attached;
in injunction, the amount of the bond must also be fixed
by the court; while in receivership, a bond is now always
required of the applicant and shall be in the sum fixed by
the court in its discretion.
Sec. 3. Order. — Upon t h e filing of s u c h affidavit

and a p p r o v a l of t h e bond, the c o u r t shall i s s u e an
order and the corresponding writ of replevin
describing the personal property alleged to be
wrongfully detained, and requiring the sheriff
f o r t h w i t h t o t a k e s u c h property i n t o h i s c u s t o d y .
(3a)
755
S e c . 4. Duty of the sheriff. — U p o n r e c e i v i n g

such order, the sheriff must serve a copy thereof on
the adverse party, together with a copy of the
application, affidavit and bond, and must forthwith
take the property, if it be in the possession of
the adverse party or his agent, and retain it in his
custody. If the property or any part thereof be
c o n c e a l e d in a building or enclosure, the sheriff
m u s t publicly d e m a n d its delivery, a n d if it be not
delivered, he must cause the building or enclosure
to be broken o p e n a n d take the property into his
possession. After the sheriff has taken possession
of the property as herein provided, he must keep it
in a s e c u r e p l a c e a n d s h a l l be r e s p o n s i b l e for its
delivery to the party entitled thereto upon receiving
h i s fees a n d n e c e s s a r y e x p e n s e s for t a k i n g and
k e e p i n g t h e s a m e . (4a)
S e c . 5 . Return o f property. — I f t h e a d v e r s e p a r t y
objects to the sufficiency of the applicant's bond,
or of the surety or sureties thereon, he cannot
immediately require the return of the property, but
if he does not so object, he may, at any time before
the delivery of the property to the applicant, require
the return thereof, by filing with the court where
the action is p e n d i n g a bond executed to the
applicant, in double the value of the property as
s t a t e d in the applicant's affidavit for t h e d e l i v e r y of
the property to the applicant, if such delivery be
a d j u d g e d , a n d for t h e p a y m e n t o f s u c h s u m t o h i m
as may be recovered against the adverse party, and
by serving a copy of such bond on the applicant.
(5a)
S e c . 6. Disposition of property by sheriff. — I f w i t h i n

five (5) d a y s a f t e r t h e t a k i n g o f t h e p r o p e r t y b y t h e
sheriff, t h e a d v e r s e party d o e s not object to the
756
RULE 60 REPLEVIN SEC. 7
sufficiency of t h e bond, or of t h e s u r e t y or s u r e t i e s
thereon; or if t h e adverse party so objects, a n d t h e
c o u r t affirms its a p p r o v a l of t h e applicant's bond
or a p p r o v e s a new bond, or if the adverse p a r t y
requires the r e t u r n of the property but his bond is
objected to a n d found insufficient and he does not
f o r t h w i t h file a n a p p r o v e d b o n d , t h e p r o p e r t y s h a l l
b e d e l i v e r e d t o t h e a p p l i c a n t . I f for a n y r e a s o n t h e
p r o p e r t y is not delivered to t h e applicant, t h e sheriff
m u s t r e t u r n i t t o t h e a d v e r s e p a r t y . (6a)
NOTES
1. In order to recover the possession of the personal

property which was taken under a writ of replevin, the
defendant must post a redelivery bond as required by Sec.
5 and serve a copy of such bond on the plaintiff within 5
days from the taking by the officer. Both requirements
are m a n d a t o r y and must be complied with within the
5-day period (Case, et al. vs. Jugo, et al., 77 Phil. 517).
2. The defendant is entitled to the r e t u r n of t h e

property taken under a writ of replevin, if:
(a) He seasonably posts a redelivery bond;
(b) The plaintiffs bond is found to be insufficient or
defective and is not replaced with a proper bond; or
(c) The property is not delivered to the plaintiff for
any reason.
Sec. 7. Proceedings where property claimed by third

person. — If t h e p r o p e r t y t a k e n is c l a i m e d by a n y
person other than the party against whom the writ
of replevin h a d been issued or his agent, a n d such
p e r s o n m a k e s an affidavit of his title t h e r e t o , or
r i g h t t o t h e p o s s e s s i o n thereof, s t a t i n g t h e g r o u n d s
t h e r e f o r , a n d s e r v e s s u c h affidavit u p o n t h e s h e r i f f
757
while the latter h a s p o s s e s s i o n thereof, stating the

grounds therefor, and serves such affidavit upon the
sheriff w h i l e t h e latter h a s p o s s e s s i o n of the
property and a copy t h e r e o f upon t h e applicant, the
s h e r i f f s h a l l n o t b e b o u n d t o k e e p t h e property
under r e p l e v i n or d e l i v e r it to t h e applicant unless
the applicant or his agent, on demand of said sheriff,
shall file a bond approved by t h e court to indemnify
the third-party c l a i m a n t in a s u m not less than the
value of t h e property u n d e r r e p l e v i n as provided in
section 2 hereof. In case of d i s a g r e e m e n t as to such
value, t h e court shall d e t e r m i n e the same. No claim
for d a m a g e s for t h e t a k i n g o r k e e p i n g o f t h e
property may be enforced a g a i n s t the bond unless
t h e a c t i o n t h e r e f o r i s filed w i t h i n o n e h u n d r e d
t w e n t y (120) d a y s from t h e date of t h e filing of the
bond.
The sheriff shall not be liable for d a m a g e s , for
the t a k i n g or k e e p i n g of s u c h property, to any such
t h i r d - p a r t y c l a i m a n t if s u c h bond s h a l l be filed.
Nothing herein contained shall prevent such
c l a i m a n t or any third p e r s o n from v i n d i c a t i n g his
c l a i m to t h e property, or p r e v e n t t h e applicant from
c l a i m i n g d a m a g e s a g a i n s t a third-party c l a i m a n t
w h o filed a frivolous or plainly s p u r i o u s claim, in
the same or a s e p a r a t e action.
When t h e writ of r e p l e v i n is i s s u e d in favor of
the Republic of the P h i l i p p i n e s , or any officer duly
r e p r e s e n t i n g it, t h e filing of s u c h bond shall not be
required, and in case the sheriff is sued for damages
as a result of the r e p l e v i n , he shall be r e p r e s e n t e d
by the Solicitor General, and if held liable therefor,
the actual d a m a g e s adjudged by t h e court shall be
paid by t h e National Treasurer out of the funds to
be appropriated for t h e purpose. (7a)
758
RULE 60 REPLEVIN SECS. 8-10
NOTE
1. The provisions of this section are virtually the

s a m e as t h e rule for t h i r d - p a r t y claims in execution
(Sec. 16, Rule 39) and in attachment (Sec. 14, Rule 57).
Sec. 8. Return of papers. — The sheriff m u s t file

t h e order, w i t h h i s p r o c e e d i n g s i n d o r s e d t h e r e o n ,
w i t h t h e c o u r t w i t h i n t e n (10) d a y s after t a k i n g t h e
p r o p e r t y m e n t i o n e d t h e r e i n . (8a)
Sec. 9. Judgment. — After trial of t h e i s s u e s ,

the court shall determine who has the right of
p o s s e s s i o n to a n d the value of t h e property and shall
r e n d e r j u d g m e n t in t h e a l t e r n a t i v e for t h e d e l i v e r y
t h e r e o f to t h e party e n t i t l e d to t h e s a m e , or for its
value in case delivery cannot be made, and also
for s u c h d a m a g e s a s e i t h e r party m a y p r o v e , w i t h
c o s t s . (9a)
Sec. 10. Judgment to include recovery against sureties.

— The a m o u n t , if any, to be a w a r d e d to a n y party
u p o n any bond filed in a c c o r d a n c e with the
provisions of this Rule, shall be claimed, ascer-
t a i n e d , and g r a n t e d u n d e r t h e s a m e p r o c e d u r e a s
p r e s c r i b e d in s e c t i o n 20 of Rule 67. (10a)
NOTES
1. Sec. 8 has been amended to reduce from 20 days

to 10 days the period within which the sheriff must file
with the court the papers stated therein.
2. The p l a i n t i f f who o b t a i n s p o s s e s s i o n of t h e
personal property by a writ of replevin does not acquire
absolute title thereto, nor does the defendant acquire such
title by re-bonding the property, as they only hold the
property subject to the final j u d g m e n t in t h e action.
759
Consequently, a buyer of such property under these

circumstances does not acquire title thereto but also holds
the property subject to the results of the suit.
3. When the chattel mortgagor defaults, and the
chattel mortgagee desires to foreclose the mortgaged
property, he must take the mortgaged property for that
purpose, but if the debtor refuses to yield possession of
the property, the creditor must institute a replevin suit,
either to effect a judicial foreclosure directly, or to secure
possession of the mortgaged property as a preliminary to
the sale contemplated under Sec. 14 of Act 1508 (Northern
Motors, Inc. vs. MelencioHerrera, et al, L 32674, Feb. 22,
1973).
4. Where a replevin suit is filed to recover possession
of a vehicle sold in i n s t a l l m e n t s p r e p a r a t o r y to the
foreclosure of the chattel mortgage thereon, the sums
adjudged to the plaintiff for replevin bond premiums,
sheriffs expenses, costs and attorney's fees can be enforced
not only against the proceeds of the mortgaged vehicle
nor is the recovery of said sums limited to said proceeds.
Such sums are not part of the "unpaid balance of the
purchase price" and Art. 1484 of the Civil Code does not
apply to replevin suits (Universal Motors Corp. vs. Velasco,
et al, L-25140, July 5, 1980).
5. The judgment in a replevin suit is required by Sec.

9 of this Rule to be in the alternative, i.e., for the delivery
of the property to the party entitled to it if, for instance,
the same had not theretofore been delivered to him since
the adverse party had filed a redelivery bond, or for the
value of the property in case the same cannot be delivered,
plus damages. The order to deliver the property implies
t h a t the same is in the condition provided for in the
obligation. Hence, if it is not in such condition, the
prevailing party has the right to refuse delivery and,
instead, to ask for the enforcement of the alternative relief
for the payment of its value (Ago, et al. vs. CA, et al,
760
RULE 60 REPLEVIN SECS. 8-10
L-19718, Jan. 31, 1966). This right to refuse to accept

the personalty for the same reason is also available to said
party even where he had asked for such delivery pendente
lite.
6. Under Sec. 10 of this Rule, the surety's liability

under the replevin bond should be included in the final
j u d g m e n t to p r e v e n t duplicity of suits or proceedings.
Where the party had seasonably filed a claim for damages
on the replevin bond in the Court of Appeals while the
case was pending therein, but said appellate court ordered
t h a t the same be heard by the trial court, and said decision
of the Court of Appeals had become final and executory,
the trial court has jurisdiction to pass upon such
application for damages (Malayan Insurance Co., Inc. vs.
Solas, et al., L-48820, May 25, 1979).
7. Sec. 10 provides for the amount to be paid to "any

party upon any bond filed" under this Rule. Consequently,
the provisions of Sec. 20 of Rule 57 are applicable not
only to the replevin bond of the plaintiff but also to the
redelivery bond posted by the defendant for the lifting of
the writ of replevin. Accordingly, the requisites for a
valid claim for damages against the surety which issued
the replevin bond must also be complied with in order to
hold liable the surety on the redelivery bond, and its
liability as ascertained shall likewise be included in the
judgment against the principal (Luneta Motor Co. vs.
Menendez, et al., L-16880, April 30, 1963).
8. A replevin bond is simply intended to indemnify

the defendant against any loss that he may suffer by being
compelled to s u r r e n d e r the possession of the disputed
property pending trial of the action. He cannot recover
on the bond as for a reconversion where he has failed to
have the judgment entered for the return of the property.
The surety is not liable for payment of the judgment for
damages rendered against the plaintiff on a counterclaim
for punitive damages for fraudulent or wrongful acts
761
RULE 60 REMEDIAL LAW COMPENDIUM SECS. S-io
c o m m i t t e d by t h e plaintiffs a n d u n c o n n e c t e d with
defendant's deprivation of possession by the plaintiff.
Even where the judgment is t h a t defendant is entitled to
the property but no order was made requiring the plaintiff
to return it or assessing damages in default of return, there
could be no liability on the p a r t of the sureties until
judgment was entered that the property should be restored
(Sapugay, et al. us. CA, et al., G.R. No. 86792, Mar. 21,
1990).
9. A writ of replevin may be served anywhere in the
Philippines. The jurisdiction of a court to hear and decide
a case should not be confused with its power to issue
writs and processes p u r s u a n t to and in the exercise of
said jurisdiction. Applying said rule, Malaloan, et al. vs.
Court of Appeals, et al. [G.R. No. 104879, May 6, 1994]
reiterated the distinction between the jurisdiction of the
trial court and the administrative area in which it could
enforce its orders and processes pursuant to the jurisdiction
conferred upon it (Fernandez, et al. us. International
Corporate Bank, et al., G.R. No. 131283, Oct. 7, 1999).
762
RULE 61
SUPPORT PENDENTE LITE
S e c t i o n 1. Application. — At t h e c o m m e n c e m e n t
of the proper action or proceeding, or at any time
p r i o r to t h e j u d g m e n t or final o r d e r , a verified
a p p l i c a t i o n for s u p p o r t pendente lite m a y be filed
b y a n y p a r t y s t a t i n g t h e g r o u n d s for t h e c l a i m a n d
the financial conditions of both parties, and
accompanied by affidavits, depositions or other
a u t h e n t i c d o c u m e n t s i n s u p p o r t thereof, ( l a )
Sec. 2. Comment. — A c o p y of t h e a p p l i c a t i o n
a n d all s u p p o r t i n g d o c u m e n t s shall be s e r v e d
u p o n t h e a d v e r s e p a r t y , w h o s h a l l h a v e five (5) d a y s
to c o m m e n t on the same, unless a different period
i s fixed b y t h e c o u r t u p o n h i s m o t i o n . T h e c o m -
m e n t shall be verified and shall be accompanied
by affidavits, depositions or o t h e r a u t h e n t i c docu-
m e n t s i n s u p p o r t t h e r e o f . (2a, 3a)
Sec. 3. Hearing. — After t h e c o m m e n t is filed, or

a f t e r t h e e x p i r a t i o n o f t h e t i m e for i t s filing, t h e
a p p l i c a t i o n s h a l l b e s e t for h e a r i n g n o t m o r e t h a n
t h r e e (3) d a y s t h e r e a f t e r . T h e facts i n i s s u e s h a l l
b e p r o v e d i n t h e s a m e m a n n e r a s i s p r o v i d e d for
e v i d e n c e o n m o t i o n s . (4a)
NOTES
1. Sec. 1 has been amended to make this provisional

remedy available not only to the plaintiff but also to any
party in the action who may have grounds to apply for
the s a m e . Sec. 2 now requires the filing within t h e
extended period of 5 days of a comment, instead of an
answer as formerly provided, since this Rule involves
763
merely an ancillary remedy. Sec. 3, in turn, now expressly

requires that a hearing on the application be set within
3 days after the filing of the comment or the expiration of
the period therefor.
2. This provisional remedy is available only in an
action for support (Coquia, et al. vs. Baltazar, 83 Phil.
265) or where one of the reliefs sought is support for the
applicant.
3. Where the right to support is put in issue by the
pleadings or the fact from which the right of support arises
is in controversy or has not been established, the court
c a n n o t g r a n t s u p p o r t pendente lite (Francisco vs.
Zandueta, 61 Phil. 752) and the contrary action of the
trial court may be challenged by certiorari.
Sec. 4 . Order. — T h e c o u r t s h a l l d e t e r m i n e
provisionally t h e p e r t i n e n t facts, a n d shall r e n d e r
such orders as justice and equity may require,
having due regard to the probable outcome of the
c a s e a n d s u c h o t h e r c i r c u m s t a n c e s a s m a y aid i n
the p r o p e r resolution of the question involved. If
t h e a p p l i c a t i o n i s g r a n t e d , t h e c o u r t s h a l l fix t h e
a m o u n t of money to be provisionally paid or such
o t h e r forms of s u p p o r t as should be provided, taking
into account the necessities of the applicant and
t h e t e r m s o f p a y m e n t o r m o d e for p r o v i d i n g t h e
support. If the application is denied, the principal
case shall be tried a n d decided as early as possible.
(5a)
Sec. 5. Enforcement of order. — If t h e a d v e r s e

p a r t y fails t o c o m p l y w i t h a n o r d e r g r a n t i n g
s u p p o r t pendente lite, t h e c o u r t s h a l l , motu
proprio o r u p o n m o t i o n , i s s u e a n o r d e r o f e x e c u t i o n
a g a i n s t h i m w i t h o u t p r e j u d i c e t o h i s l i a b i l i t y for
c o n t e m p t . (6a)
764
RULE 61 S U P P O R T P E N D E N T E LITE S E C S . 4-5
When the person ordered to give support

pendente lite r e f u s e s or fails to do s o , a n y t h i r d
p e r s o n w h o f u r n i s h e s s u p p o r t t o t h e a p p l i c a n t may,
after d u e n o t i c e a n d h e a r i n g in t h e same case, obtain
a writ of e x e c u t i o n to enforce his right of
reimbursement against the person ordered to
p r o v i d e s u c h s u p p o r t , (n)
NOTES
1. Since support does not consist merely of giving

money to t h e beneficiary, the amended Sec. 4 of this
Rule makes mention of "other forms of support" and the
"mode for providing the support." Sec. 5, as amended,
retains the sanctions of both execution pendente lite and
contempt against the disobedient party. It also considers
the possibility t h a t a third person may have furnished
s u p p o r t to t h e a p p l i c a n t , in w h i c h case a r i g h t of
reimbursement is recognized in favor of t h a t third person
who may obtain a writ of execution, on motion in the same
case, against the party who should legally provide such
support.
2. While an o r d e r for s u p p o r t pendente lite is

interlocutory, the same, however, is subject to execution.
Being an interlocutory order and one for support, the same
may be modified at any stage of the proceedings. The
remedy, if the order is with grave abuse of discretion, is
certiorari with preliminary injunction.
3. The support granted under this Rule is provisional
in n a t u r e and the actual amount and terms of its pay-
ment shall be determined in the final judgment. If the
judgment is in favor of the defendant, the support pendente
lite is discontinued (Saavedravs. Ybahez Estrada, 56 Phil.
33) and the court should make findings and provisions
for the restitution of the amounts unjustifiedly received
as support pendente lite. Sec. 7 now provides therefor.
765
4. The Court of Appeals may grant support pendente

lite, during the pendency of the appeal therein, where no
application therefor was filed and/or granted in the trial
court or even if the l a t t e r had denied an application
therefor (Ramos vs. CA, et al., L-31897, June 30, 1972),
provided t h a t the basis for the right to such support has
been proven in the trial court although such findings are
on appeal, or are so proven in the Court of Appeals itself.
5. In determining the sum to be awarded as support
pendente lite, it is not necessary to go into the merits of
the case, it being sufficient t h a t the court ascertains the
kind and amount of evidence which it may deem sufficient
to enable it to justly resolve the application. It is enough
t h a t t h e facts be e s t a b l i s h e d by affidavits or other
documentary evidence in the record. While adultery of
the wife is a good defense in an action for support pendente
lite, the failure of the husband to present any evidence
thereon at t h e hearing of the application for support
pendente lite, despite his allegation thereof, will not bar
her from the right to receive such support pendente lite
(Reyes vs. Ines-Luciano, et al., L-48219, Feb. 28, 1979).
6. Where, in an action for support, plaintiff did not

ask for support pendente lite and appeal was duly perfected
by the defendant from the judgment therein, the trial court
loses jurisdiction over the case and cannot thereafter issue
an order for execution pending appeal since said order is
a proceeding involving the very matter litigated by the
appeal (Vasco vs. CA, et al, L-46763, Feb. 28, 1978).
P l a i n t i f f - a p p e l l e e may, however, apply for s u p p o r t
pendente lite in the appellate court, in line with the
doctrine in Ramos vs. CA, et al., supra.
7. On r e l e v a n t considerations, it should also be

observed t h a t during the settlement of the estate, the
widow a n d m i n o r or i n c a p a c i t a t e d c h i l d r e n of t h e
decedent are entitled to receive such allowances as are
766
RULE 61 S U P P O R T P E N D E N T E LITE SEC. 6
provided by law (Sec. 3, Rule 83; cf. Art. 133, Family

Code).
Sec. 6. Support in criminal cases. — In c r i m i n a l

a c t i o n s w h e r e t h e civil l i a b i l i t y i n c l u d e s s u p p o r t
for t h e o f f s p r i n g a s a c o n s e q u e n c e o f t h e c r i m e
a n d t h e civil a s p e c t t h e r e o f h a s n o t b e e n w a i v e d ,
r e s e r v e d o r i n s t i t u t e d p r i o r t o its filling, t h e a c c u s e d
m a y b e o r d e r e d t o p r o v i d e s u p p o r t pendente lite t o
the child born to the offended p a r t y allegedly
because of the crime. The application therefor
m a y b e filed s u c c e s s i v e l y b y t h e o f f e n d e d p a r t y ,
her parents, grandparents or guardian and the
State in the c o r r e s p o n d i n g criminal case d u r i n g its
pendency, in accordance with the procedure
e s t a b l i s h e d u n d e r t h i s R u l e , (n)
NOTES
1. This is a new provision and has for its substantive

basis the directive in Art. 345 of the Revised Penal Code
which pertinently provides:
"Art. 345. Civil liability of persons guilty of
crimes against chastity. - Persons guilty of rape,
seduction or abduction shall also be sentenced:
1. To indemnify the offended woman;
2. To acknowledge the offspring, unless the law
should prevent them from so doing;
3. In every case to support the offspring."
This section had, however, to be modified since
Art. 345 of the Code included the crime of abduction where
mere lewd designs, without carnal knowledge, is sufficient,
hence t h e r e need not necessarily be an offspring. It
was justified t h e r e i n because it further provided for
indemnity to the victim. Since this section is on the subject
of support for the offspring as a result of the crime, it
767
presupposes that there had been sexual relations, and this

is true even if such act is only punished as a component of
a composite crime, such as robbery with rape, and is within
the contemplation of this section.
2. The right herein granted to the offended party,
her parents, grandparents, guardian or the State, in that
successive a n d exclusive o r d e r , is in line w i t h the
provisions of Art. 344 of the Revised Penal Code and Sec.
5, Rule 110 of these Rules which authorize them to file
the basic criminal complaint and, therefore, should include
such auxiliary remedies as may be permitted therefor.
There should accordingly be no reason to deprive the
hapless offspring from being granted such provisional
support during the pendency of the criminal case wherein
t h e civil aspect is included. If t h e civil action was
separately instituted, support pendente lite can be sought
therein. While it is true that the civil action is suspended
upon the filing of the criminal action (Sec. 2, Rule 111),
the court wherein the former is pending can issue ancillary
writs such as preliminary injunction, attachment or similar
processes which do not go into the merits of the case
(Babala vs. Abano, 90 Phil. 827) and, with t h i s new
provision, inclusive of the provisional remedy of support
pendente lite.
Sec. 7. Restitution. — W h e n t h e j u d g m e n t or
final o r d e r o f t h e c o u r t finds t h a t t h e p e r s o n w h o
h a s b e e n p r o v i d i n g s u p p o r t pendente lite is n o t
liable therefor, it shall o r d e r t h e recipient thereof
to r e t u r n to t h e former the a m o u n t s already paid
w i t h legal i n t e r e s t from t h e d a t e s o f a c t u a l p a y m e n t ,
without prejudice to the right of the recipient to
o b t a i n r e i m b u r s e m e n t i n a s e p a r a t e a c t i o n from t h e
p e r s o n legally o b l i g e d t o give t h e s u p p o r t . S h o u l d
t h e r e c i p i e n t fail t o r e i m b u r s e s a i d a m o u n t s , t h e
person who paid the same may seek reimbursement
768
RULE 61 S U P P O R T P E N D E N T E LITE SEC. 7
t h e r e o f in a s e p a r a t e a c t i o n from t h e p e r s o n legally
o b l i g e d to g i v e s u c h support, (n)
NOTE
1. This is another new provision intended to provide

a solution to the question of restitution of support paid by
a person who is thereafter declared not liable therefor.
While the practical problem is posed by the fact t h a t the
applicant or recipient may not have the financial ability
to refund the same, as in fact his lack of resources was
one of the bases for the grant of support pendente lite, it
does not m e a n t h a t he is or will always be a c t u a l l y
impecunious or that there is no other person legally obliged
to give t h a t support.
A c c o r d i n g l y , t h e p a r t y who w a s e r r o n e o u s l y
compelled to give support has the following remedies:
(1) He can apply for an order for such reimbursement by
the recipient on motion in the trial court in the same case,
unless such restitution is already included in the judgment
rendered in the action; or (2) Failing therein, he can file a
s e p a r a t e action for reimbursement against the person
legally obliged to give such support.
Should the recipient reimburse the amount received
by h i m as s u p p o r t t h r o u g h e i t h e r of t h e foregoing
alternative procedures, he shall also have the right to file
a separate action for reimbursement against the person
legally obliged to give him such support.
769
S P E C I A L CIVIL ACTIONS
1. The former Rules prescribed, as Rule 62 thereof,

the general rule t h a t the provisions of the preceding Rules
shall apply in special civil actions insofar as they are not
i n c o n s i s t e n t w i t h or may s e r v e to s u p p l e m e n t the
provisions of the following Rules on special civil actions.
This operational application is now incorporated in Sec. 3,
Rule 1, and the present Rule 62 now regulates the special
civil action of interpleader.
2. The special civil actions of interpleader, expro-

priation, foreclosure of real estate mortgage, partition, and
forcible entry or unlawful detainer are commenced by
complaints.
On the other hand, special civil actions for declaratory
relief and similar remedies, review of adjudications of the
constitutional commissions, certiorari, prohibition,
m a n d a m u s , quo warranto, and contempt are initiated by
petitions.
3. The venue of special civil actions is governed by
the general rules on venue, except as otherwise indicated
in the particular rule for said special civil action. Thus,
actions for certiorari, prohibition and mandamus should
be commenced in the proper Regional Trial Court, but the
same may, in proper cases, be commenced in the Supreme
Court or the Court of Appeals (Sec. 4, Rule 65); and a
special r u l e of v e n u e is p r o v i d e d for quo w a r r a n t o
proceedings (see Sec. 7, Rule 66).
4. Under Sec. 44(h) of the Judiciary Act, Courts of
First Instance could issue writs of injunction, mandamus,
certiorari, prohibition, quo warranto and habeas corpus
only within their respective provinces and districts (see
Dela Cruz vs. Gabor, L-30774, Oct. 31, 1969, and cases
770
therein cited). U n d e r B.P. Blg. 129, such writs issued by

the Regional Trial Courts are now enforceable within their
respective regions (Sec. 21[1]J).
5. There a r e three special civil actions which can be

filed in or a r e w i t h i n the jurisdiction of the so-called
inferior courts, or courts of the first level, viz.:
(a) I n t e r p l e a d e r , provided the a m o u n t involved is
within its jurisdiction (Makati Development Corp. vs.
Tanjuatco, et al, L-26443, Mar. 25, 1969);
(b) Ejectment suits (Sec. 88, R.A. 296; Rule 70); and
(c) Contempt (Secs. 1 and 4, Rule 71).
6. By virtue of Sec. 3 of Rule 1, the provisions of
Rule 16 on motion to dismiss are applicable in special civil
actions (see National Power Corporation vs. Valera,
L-15295, Nov. 30, 1961).
7. Under Sec. 9, B.P. Blg. 129, the then Intermediate
Appellate Court had original jurisdiction to issue writs of
c e r t i o r a r i , prohibition, m a n d a m u s a n d quo w a r r a n t o
w h e t h e r or not in aid of its appellate jurisdiction. Such
original jurisdiction is concurrent with t h a t of the Supreme
Court (Sec. 17[2], R.A. 296) and the Regional Trial Courts
(Sec. 2111], B.P. Blg. 129). The c o n f l u e n t o r i g i n a l
jurisdiction of the Intermediate Appellate Court (now, the
Court of Appeals) and the Supreme Court in these cases
is, however, subject to the restriction in the Interim Rules
which provides:
"17. Petition for writs of certiorari, etc. — No
petition for certiorari, mandamus, prohibition, habeas
corpus or quo w a r r a n t o m a y be filed in t h e
I n t e r m e d i a t e Appellate Court if a n o t h e r similar
p e t i t i o n h a s been filed or is still pending in t h e
Supreme Court. Nor may such petition be filed in
the Supreme Court if a similar petition has been filed
or is still pending in the Intermediate Appellate Court,
771
u n l e s s it be to review t h e action t a k e n by the

Intermediate Appellate Court on the petition filed with
it. A violation of this rule shall constitute contempt
of court a n d s h a l l be a c a u s e for t h e s u m m a r y
dismissal of both petitions, without prejudice to the
taking of appropriate action against the counsel or
party concerned."
This provision was applied in Vda. de Ganzon, et al.
vs. Yrad, et al. (G.R. No. 52305, Dec. 26, 1984, jointly
deciding two other cases). This interim Rule is intended
to proscribe the malpractice of "forum shopping" which
trifles with the courts, abuses their processes, and tends
to degrade the administration of justice (E. Razon, Inc.,
et al. vs. Phil. Ports Authority, et al, G.R. No. 75197,
July 31, 1986; Buan, et al. vs. Lopez, Jr., G.R. No. 75349,
Oct. 13, 1986), and has been adopted in these Rules.
8. In the absence of special reasons, it has long been
the rule t h a t the Supreme Court will decline original
jurisdiction in certiorari, prohibition and mandamus cases,
especially when it is necessary to take evidence and make
findings on controverted facts, since it is not a trier of facts
and t h a t is a function which can better be done by the
trial courts (Fisher vs. Yangco Steamship Co., 31 Phil. 1).
Thus, in cases where the Supreme Court and the Regional
Trial Court have concurrent jurisdiction, as in petitions
for the above writs, the same will not be entertained by
the Supreme Court unless a justified showing is made as
to why the petition is filed therein instead of the Regional
Trial Court (see Piit vs. De Lara, et al., 58 Phil. 765).
The same rule applies to an action for quo warranto
wherein the Supreme Court has concurrent jurisdiction
with the Regional Trial Court. Absent sufficient reasons,
the action will be left for determination by the Regional
Trial Court which is better equipped to take testimony and
resolve factual questions involved therein (see Veraguth
vs. Isabela Sugar Co., 57 Phil. 266).
772
R U L E 62
INTERPLEADER
S e c t i o n 1. Interpleader when proper. — W h e n e v e r

conflicting claims upon the same subject matter are
or may be m a d e against a person who claims no
interest whatever in the subject matter, or an
interest which in whole or in part is not disputed
by the claimants, he may bring an action against
the conflicting claimants to compel them to
interplead and litigate their several claims among
t h e m s e l v e s , ( l a , R63)
Sec. 2. Order. — U p o n t h e f i l i n g of t h e c o m -
plaint, the court shall issue an order requiring the
conflicting claimants to interplead with one
another. If the interests of justice so require, the
court may direct in such order that the subject
m a t t e r b e p a i d o r d e l i v e r e d t o t h e c o u r t . (2a, R63)
Sec. 3. Summons. — S u m m o n s s h a l l be s e r v e d
upon the conflicting claimants, together with a
c o p y o f t h e c o m p l a i n t a n d o r d e r . (3, R63)
Sec. 4. Motion to dismiss. — W i t h i n t h e t i m e for

filing a n a n s w e r , e a c h c l a i m a n t m a y file a m o t i o n
to dismiss on the ground of impropriety of the
interpleader action or on other appropriate
g r o u n d s s p e c i f i e d i n R u l e 16. T h e p e r i o d t o file t h e
a n s w e r shall be tolled and if the motion is denied,
t h e m o v a n t m a y file h i s a n s w e r w i t h i n t h e
r e m a i n i n g period, but which shall not be less t h a n
five (5) d a y s i n a n y e v e n t , r e c k o n e d from n o t i c e o f
d e n i a l , (n)
773
Sec. 5. Answer and other pleadings. — E a c h

claimant shall file his a n s w e r setting forth his claim
within fifteen (15) days from service of the summons
upon him, s e r v i n g a copy t h e r e o f upon e a c h of the
other c o n f l i c t i n g c l a i m a n t s w h o may file their reply
t h e r e t o as p r o v i d e d by t h e s e Rules. If any claimant
fails to plead w i t h i n the time h e r e i n fixed, the court
may, on motion, declare him in default and
thereafter r e n d e r j u d g m e n t barring h i m from any
c l a i m in r e s p e c t to t h e subject matter.
T h e p a r t i e s i n a n i n t e r p l e a d e r a c t i o n may
file c o u n t e r c l a i m s , c r o s s - c l a i m s , third-party com-
p l a i n t s and r e s p o n s i v e p l e a d i n g s t h e r e t o , a s pro-
vided by t h e s e Rules. (4a, R63)
Sec. 6. Determination. — After t h e p l e a d i n g s of

t h e c o n f l i c t i n g c l a i m a n t s h a v e been filed, and pre-
trial h a s b e e n c o n d u c t e d i n a c c o r d a n c e w i t h the
Rules, t h e c o u r t shall p r o c e e d t o d e t e r m i n e their
respective rights and adjudicate their several
claims. (5a, R63)
Sec. 7. Docket and other lawful fees, costs and

litigation expenses as liens. — T h e d o c k e t and o t h e r
lawful fees paid by t h e party w h o filed a complaint
u n d e r t h i s Rule, as well as t h e costs and litigation
e x p e n s e s , shall c o n s t i t u t e a lien or charge upon the
subject m a t t e r of t h e action, u n l e s s t h e court shall
order o t h e r w i s e . (6a, R63)
NOTES
1. For the distinctions between intervention and

interpleader, see notes under Sec. 1, Rule 19.
2. The action of interpleader is a remedy whereby a
person who has property in his possession or has an
obligation to render wholly or partially, without claiming
774
RULE 62 INTERPLEADER SECS. 5-7
any r i g h t in both, comes to court a n d a s k s t h a t t h e

defendants who have made conflicting claims upon the
same property or who consider themselves entitled to
d e m a n d compliance with the obligation be required to
litigate among themselves in order to determine who is
entitled to the property or payment or the obligation. The
r e m e d y is afforded not to protect a person a g a i n s t a
double liability but to protect him against a double vexation
in respect of one liability (Beltran, et al. vs. People's
Homesite & Housing Corp., L-25138, Aug. 28, 1969).
3. Inferior courts have jurisdiction in interpleader
cases w h e r e the a m o u n t involved is within t h e i r
j u r i s d i c t i o n , a l t h o u g h they were not bound to follow
strictly t h e provisions of t h e n Rule 63, but may apply
t h e g e n e r a l r u l e s in o r d i n a r y civil a c t i o n s (Makati
Development Corp. vs. Tanjuatco, et al., supra). The
procedural aspect announced in t h a t case is no longer
accurate and has been modified by the rule on uniform
procedure to be followed by the Regional Trial Courts and
the lower courts.
The inferior court would not have jurisdiction over
an i n t e r p l e a d e r case for the recovery of title to real
property or actions for specific performance, annulment
or rescission of contracts and other actions within the
exclusive original jurisdiction of the Regional Trial Courts.
4. Sec. 4 is a new provision and provides for the filing
of a motion to dismiss. Of course, p u r s u a n t to Sec. 3(a) of
Rule 1, the provisions of Rule 16 on a motion to dismiss
may also be availed of in special civil actions whenever
the preliminary objections therein may feasibly be invoked.
However, particularly for purposes of this special civil
action, the impropriety of resorting to an interpleader
action may be raised as a special ground in addition to
those provided in Rule 16. A special rule on the effect of
a motion to dismiss upon the reglementary period to
775
RULE 82 R E M E D I A L LAW C O M P E N D I U M SEC8 5-7
answer is further provided, to make it uniform with

Rules 12 and 16.
Along the same vein, a second paragraph has been
added to Sec. 5 to expressly authorize the additional
pleadings and claims enumerated therein, in the interest
of a complete adjudication of the controversy and its
incidents.
5. Under Sec. 5, the conflicting claimants, who are
co-defendants in the action, must serve copies of their
answers not only on the plaintiff but also upon their
co-defendants. This special rule is necessitated by the
fact t h a t t h e controversy actually exists among the
co-defendants and the plaintiff may have no interest in
the subject-matter. In ordinary civil actions, co-defendants
need not serve a copy of their respective answers on each
other except when the answer contains a cross-claim.
6. The costs, expenses and attorney's fees incurred
by the plaintiff in the action is recoverable from the
defendant who loses in the action and is found by the
court to have caused the unnecessary litigation (Menzi &
Co. vs. Bastida, 63 Phil. 16).
7. Interpleader cannot be availed of to resolve the
issue of breach of u n d e r t a k i n g s made by defendants,
which issues should be resolved in an ordinary civil action
for specific performance or other relief (Beltran vs. PHHC,
L-25138, Aug. 28, 1969).
8. Where there are no conflicting claims among the
defendants, their respective claims being separate and
distinct from each other, the complaint for interpleader
may be dismissed for lack of cause of action (Vda. de
Camilo vs. Aranio, L-15653, Sept. 29, 1961).
9. An action for interpleader must be filed within a
reasonable time after the dispute has arisen, otherwise it
may be barred by laches. Where a party was aware of
776
RULE 62 INTERPLEADER S E C S . 5-7
t h e d i s p u t e a n d in fact had been sued by one of t h e

c l a i m a n t s a n d t h e former did not implead t h e o t h e r
c l a i m a n t , he can no longer invoke the remedy of
interpleader (Wack- Wack Golf & Country Club, Inc. vs.
Lee Won, et al, L-23851, Mar. 26, 1976).
777
RULE 63
DECLARATORY RELIEF
AND SIMILAR REMEDIES
Section 1. Who may file petition. — Any person

i n t e r e s t e d u n d e r a d e e d , will, c o n t r a c t or other
w r i t t e n i n s t r u m e n t , or w h o s e r i g h t s are affected by
a statute, e x e c u t i v e order or r e g u l a t i o n , ordinance,
or any o t h e r g o v e r n m e n t a l r e g u l a t i o n may, before
breach or v i o l a t i o n thereof, bring an a c t i o n in the
appropriate R e g i o n a l Trial Court to d e t e r m i n e any
q u e s t i o n of c o n s t r u c t i o n or validity arising, and for
a d e c l a r a t i o n of h i s r i g h t s or d u t i e s , t h e r e u n d e r .
An a c t i o n for t h e r e f o r m a t i o n of an i n s t r u -
ment, to quiet title to real property or r e m o v e clouds
therefrom, or to consolidate o w n e r s h i p under Article
1607 of t h e Civil Code, may be brought u n d e r this
Rule, ( l a , R64) (As amended by Resolution of the
Supreme Court, dated Feb. 17, 1998)
NOTES
1. The first paragraph refers to declaratory relief.

The second paragraph refers to the action to quiet title,
authorized by Arts. 476 to 481 of the Civil Code; the action
for the reformation of an instrument authorized under
Arts. 1359 to 1369 of the Civil Code; and the action to
consolidate ownership required by Art. 1607 of the Civil
Code in a sale with right to repurchase. These three
remedies are considered similar to declaratory relief
because they also result in the adjudication of the legal
rights of the litigants, often without the need of execution
to carry the judgment into effect.
2. In declaratory relief, the subject-matter is a deed,

will, c o n t r a c t o r o t h e r w r i t t e n i n s t r u m e n t , s t a t u t e ,
778
RULE 63 DECLARATORY RELIEF SEC. 1
A N D SIMILAR REMEDIES
executive order or regulation, or ordinance. The issue

is the validity or construction of these documents. The
relief sought is the declaration of the petitioner's rights
and duties t h e r e u n d e r .
The concept of a cause of action in ordinary civil
actions does not apply to declaratory relief as this special
civil action presupposes t h a t there has been no breach or
violation of t h e i n s t r u m e n t s involved. Consequently,
unlike other j u d g m e n t s , the judgment in an action for
declaratory relief does not essentially entail any execu-
tional process as the only relief to be properly granted
therein is a declaration of the rights and duties of the
parties under t h e instrument, although some exceptions
have been recognized under certain situations.
3. The requisites of an action for declaratory relief
are:
(a) The subject-matter of the controversy must be a
deed, will, contract, or other written instrument, statute,
executive order or regulation, or ordinance;
(b) The t e r m s of said documents and the validity
thereof are doubtful and require judicial construction
(Santos vs. Aquino, et al., 94 Phil. 65);
(c) There m u s t have been no breach of the docu-
m e n t s in question (Teodoro vs. Mirasol, 99 Phil. 150;
Reparations Commission vs. Northern Lines, Inc.,
L-24835, July 31, 1970), otherwise an ordinary civil action
is the remedy;
(d) There must be an actual justiciable controversy
or the "ripening seeds" of one between persons whose
interests are adverse (Edades vs. Edades, 99 Phil. 675);
(e) The issue must be ripe for judicial determination
(Tolentino vs. Board of Accountancy, et al., 90 Phil. 83),
as, for example, where all administrative remedies have
been exhausted; and
779
(f) Adequate relief is not available through other

means or other forms of action or proceedings (Ollada vs.
Central Bank, L-11357, May 31, 1962).
4. By reason of these requisites, declaratory relief
is not available for a declaration of citizenship (Villa-
Abrille Lim, et al. vs. Republic, 99 Phil. 361), or the
validity or construction to be placed on a registration
certificate (Obiles vs. Republic, 92 Phil. 864), as these are
u n i l a t e r a l in n a t u r e and without conflicting adverse
interests between two parties, hence they do not fall within
the "written instrument" contemplated in Sec. 1. Also, a
court decision c a n n o t be t h e subject of d e c l a r a t o r y
relief, as there are other existing remedies in connection
t h e r e w i t h , primarily, by appeal to the higher courts
(Tanda vs. Aldaya, 98 Phil. 244), or, in case of ambiguity,
by a motion for a so-called "clarificatory" judgment.
5. To be ripe for j u d i c i a l d e t e r m i n a t i o n , or to
constitute the "ripening seeds" of a controversy, it must
a p p e a r t h a t , u n d e r t h e facts of t h e case, t h e r e is a
t h r e a t e n e d litigation in the immediate future, which
litigation is imminent and inevitable unless prevented by
the declaratory relief sought (Tolentino vs. Board of
Accountancy, et al., supra).
Sec. 2. Parties. — All p e r s o n s w h o h a v e or c l a i m

any interest which would be affected by the
declaration shall be made parties; and no declara-
tion shall, except as otherwise provided in these
Rules, prejudice the rights of persons not parties to
t h e a c t i o n . (2a, R64)
Sec. 3. Notice on Solicitor General. — In a n y a c t i o n

which involves t h e validity of a s t a t u t e , executive
order or regulation, or any other governmental
r e g u l a t i o n , t h e S o l i c i t o r G e n e r a l s h a l l b e notified
by the party assailing the same and shall be entitled
780
RULE 63 DECLARATORY RELIEF S E C S . 4-6
to be h e a r d u p o n s u c h q u e s t i o n . (3a, R64)
Sec. 4. Local government ordinances. — In a n y

a c t i o n i n v o l v i n g t h e validity of a local g o v e r n m e n t
ordinance, the corresponding prosecutor or
attorney of the local government unit involved
s h a l l be s i m i l a r l y notified and e n t i t l e d to be heard.
If s u c h o r d i n a n c e is a l l e g e d to be u n c o n s t i t u t i o n a l ,
t h e S o l i c i t o r G e n e r a l shall be notified and e n t i t l e d
to be h e a r d . (4a, R64)
Sec. 5. Court action discretionary. — E x c e p t in

actions falling under the second paragraph of
s e c t i o n 1 of t h i s Rule, t h e court, motu proprio or
u p o n m o t i o n , may refuse t o e x e r c i s e t h e p o w e r t o
declare rights and to construe instruments in any
case w h e r e a decision would not terminate the
u n c e r t a i n t y o r c o n t r o v e r s y w h i c h gave rise t o t h e
a c t i o n , or in a n y c a s e w h e r e a d e c i s i o n w o u l d not
terminate the uncertainty or controversy which
gave rise to the action, or in any case where the
d e c l a r a t i o n o r c o n s t r u c t i o n i s not n e c e s s a r y a n d
p r o p e r u n d e r t h e c i r c u m s t a n c e s . (6a, R64)
Sec. 6. Conversion into ordinary action. — If

before t h e final t e r m i n a t i o n of t h e c a s e , a breach
or v i o l a t i o n of an i n s t r u m e n t or a statute, e x e c u t i v e
order or regulation, ordinance, or any other
governmental regulation should take place, the
action, may thereupon be converted into an
o r d i n a r y a c t i o n , a n d the p a r t i e s shall be a l l o w e d to
file s u c h p l e a d i n g s as may be n e c e s s a r y or proper.
(6a, R64)
NOTES
1. Under Sec. 5, declaratory relief may be refused

by the court where the same would not terminate the
781
uncertainty or controversy. For instance, there may be

proper parties who cannot be joined and whose interests
will give rise to the uncertainty or where the judgment in
the action for declaratory relief may change upon proof of
facts not then available to the court (see 3 Moran 159,
1980 Ed.). This discretion is justified as, precisely, the
p u r p o s e of d e c l a r a t o r y r e l i e f is to t e r m i n a t e the
controversy. Such discretion, however, does not extend
to actions for the reformation of an instrument, to quiet
title to real property or to remove clouds therefrom, or to
consolidate ownership in a pacto de retro sale.
2. In one case, what was sought was not a declara-

tion that the respondent was a corporation, on which there
was no dispute, but t h a t it was separate and distinct from
another corporation for whose liabilities it should not
respond. The rule is t h a t where the relief sought would
be determinative of issues r a t h e r than a construction of
definite stated rights, status and other relations commonly
expressed in written instruments, the case is not one for
declaratory judgment. Considering t h a t in a proceeding
for declaratory judgment the relief which may be sought
is limited only to a d e c l a r a t i o n of r i g h t s and not a
d e t e r m i n a t i o n or t r i a l of issues, a declaratory relief
proceeding is unavailable where a judgment may be made
only after a judicial investigation of the issues (Kawasaki
Port Service Corp., et al. vs. Amores, etc., et al., G.R.
No. 58340, July 16, 1991).
3. P e t i t i o n s for declaratory relief r e g a r d i n g the

interpretation of collective bargaining agreements were
within the jurisdiction of the former Court of Industrial
Relations and not of the Court of First Instance (PVTA
Employees Association vs. Judge Masakayan, et al.,
L-29538, Nov. 29, 1972, jointly deciding therein L-27953).
4. Since no material relief is sought in an action for
declaratory relief, a t h i r d - p a r t y complaint cannot be
entertained therein (Comm. of Customs, et al. vs. Cloribel,
782
RULE 63 DECLARATORY RELIEF S E C S . 4-6
et al, L-21036, June 30, 1977). However, a compulsory

counterclaim may be set up in a declaratory relief suit
(Visayan Packing Corp. vs. Reparations Commission, et
al., L-29673, Nov. 12, 1987; Phil. Deposit Insurance Corp.
vs. CA, et al., G.R. No. 126911, April 30, 2003).
5. The non-joinder of persons who claim any interest

which may be affected by a declaratory judgment is not a
jurisdictional defect, as Sec. 2 of this Rule provides t h a t
said declaration shall not prejudice their interests, unless
otherwise provided in the Rules of Court (Baguio Citizens
Action, Inc. vs. The City Council, etc., of Baguio City,
L-27247, April 20, 1983).
6. In an action for declaratory relief involving the

determination of t h e validity of a municipal ordinance
imposing "inspection fees" on cassava starch shipped out
of the municipality by petitioner corporation, the petition
also prayed for the refund of the amount paid under protest
by reason of said ordinance. Respondent municipality
questioned t h e propriety of such relief in view of t h e
n a t u r e of an action for declaratory relief and the fact t h a t
it had not been converted into an ordinary action by the
filing of t h e c o r r e s p o n d i n g p l e a d i n g s therefor. The
Supreme Court sustained the grant of such relief since
Sec. 6 of this Rule contemplates the situation wherein,
before the termination of the action for declaratory relief,
a breach or violation of the ordinance takes place, which
fact was absent in this case. Further, the respondent
did not object to the allegations on this issue in its answer
to the petition. Respondent's position would give rise to
a multiplicity of suits (Matalin Coconut Co., Inc. vs.
Mun. Council of Malabang, Lanao de Sur, et al, L-28183,
Aug. 13, 1986).
7. Also, although the actions are for declaratory

j u d g m e n t s b u t t h e allegations in the complaints a r e
sufficient to make out a case for reconveyance of real
property (Santos vs. IAC, et al, G.R. No. 74243, Nov. 14,
783
1986) or for recovery of readjusted rentals (Congressional

Commercial Corp., et al. vs. CA, et al, G.R. No. 59113,
Nov. 27, 1986), with corresponding claims for damages,
and the defendants therein did not object or raise an issue
in the trial court to challenge the form of the action, the
decision can g r a n t such affirmative relief as may be
warranted by the evidence.
8. An action for declaratory relief must be brought
in the proper Court of First Instance (now, the Regional
Trial Court). It is not among the actions within the
original jurisdiction of the Supreme Court even if only
questions of law are involved (see Sec. 17, R.A. 296;
Remotigue vs. Osmeha, Jr., L-28202, Nov. 10, 1967; Rural
Bank of Olongapo, Inc. vs. Comm. of Land Registration,
et al, L-47988, Feb. 20, 1981). However, if the petition
has far-reaching implications and it raises questions
t h a t s h o u l d be r e s o l v e d , it m a y be t r e a t e d as one
for p r o h i b i t i o n (De la Liana, et al. vs. Alba, et al,
G.R. No. 57883, Mar. 12, 1982) or for mandamus (Alliance
of Gov't Workers vs. Minister of Labor and Employment,
G.R. No. 60403, Aug. 3, 1983; In re Saturnino V.
Bermudez, G.R. No. 76180, Oct. 24, 1986).
784
RULE 64
REVIEW OF JUDGMENTS AND FINAL ORDERS

OR RESOLUTIONS OF THE COMMISSION ON
ELECTIONS AND THE COMMISSION ON AUDIT
S e c t i o n 1. Scope. — T h i s Rule shall g o v e r n t h e

r e v i e w of j u d g m e n t s and final o r d e r s or r e s o l u t i o n s
o f t h e C o m m i s s i o n o n E l e c t i o n s and t h e C o m m i s s i o n
on Audit, (n)
Sec. 2. Mode of review. — A j u d g m e n t or final

order or resolution of the Commission on Elections
a n d t h e C o m m i s s i o n on Audit may be b r o u g h t by
the aggrieved party to the Supreme Court on
c e r t i o r a r i u n d e r R u l e 65, e x c e p t a s h e r e i n a f t e r
p r o v i d e d , (n) (As amended by Resolution of the Supreme
Court, dated Feb. 17, 1998)
Sec. 3. Time to file petition. — The p e t i t i o n shall

be filed w i t h i n t h i r t y (30) d a y s from n o t i c e of t h e
j u d g m e n t or final order or r e s o l u t i o n s o u g h t to be
r e v i e w e d . The filing of a m o t i o n for n e w trial or
r e c o n s i d e r a t i o n of said j u d g m e n t or final order or
r e s o l u t i o n , if a l l o w e d u n d e r t h e p r o c e d u r a l r u l e s of
the Commission concerned, shall interrupt the
p e r i o d h e r e i n fixed. If t h e m o t i o n is d e n i e d , t h e
a g g r i e v e d p a r t y may file t h e p e t i t i o n w i t h i n t h e
r e m a i n i n g period, but w h i c h shall not be l e s s t h a n
five (5) d a y s in any e v e n t , r e c k o n e d from n o t i c e of
denial, (n)
Sec. 4. Docket and other lawful fees. — Upon t h e

filing of t h e p e t i t i o n , the petitioner shall pay to the
clerk of c o u r t t h e d o c k e t and other lawful fees and
d e p o s i t t h e a m o u n t of P500.00 for costs, (n)
785
NOTES
1. This new Rule is based on t h e provisions of

Art. IX-A of the 1987 Constitution regarding the three
constitutional commissions provided for therein, one of the
common provisions therefor being as follows:
"SEC. 7. Each commission shall decide by a
majority vote of all its members any case or matter
brought before it within sixty days from the date of
its submission for decision or resolution. A case or
matter is deemed submitted for decision or resolution
upon the filing of the last pleading, brief or memo-
r a n d u m required by the rules of the commission or
by the commission itself. Unless otherwise provided
by the Constitution or by law, any decision, order or
ruling of each commission may be brought to the
Supreme Court on certiorari by the aggrieved party
within thirty days from receipt of a copy thereof."
2. The remedy of certiorari in this Rule against
adjudications of the constitutional commissions is now
applicable only to the Commission on Elections and the
Commission on Audit. P u r s u a n t to authority granted in
the aforequoted provision, and as explained in the early
part of this volume, Congress enacted R.A. 7902 amending
Sec. 9 of B.P. Blg. 129, effective M a r c h 18, 1995,
eliminating such recourse to the S u p r e m e Court and
transferring the revising power to the Court of Appeals
over all adjudications of the Civil Service Commission. For
t h a t matter, the same amendment was made with respect
to the Central Board of Assessment Appeals.
3. As a consequence, the S u p r e m e Court issued

Revised Administrative Circular No. 1-95 implementing
t h e foregoing a m e n d m e n t a n d i n c l u d i n g t h e Civil
Service Commission among the quasi-judicial agencies
whose a w a r d s , j u d g m e n t s , final orders or resolutions
should be elevated to the Court of Appeals on a petition
786
RULE 64 REVIEW OF J U D G M E N T S , ETC. SEC. 5
O F C O M E L E C A N D COA
for review, effective J u n e 1, 1995. This procedure has

been formulated into and is incorporated in this revision
as the new Rule 43 thereof. Except for this procedural
change in the review of its adjudication, the Civil Service
Commission continues to be governed by Art. IX of the
C o n s t i t u t i o n as a c o n s t i t u t i o n a l commission c r e a t e d
therein.
4. With respect to the Commission on Elections and

the Commission on Audit, the mode of review shall be by
a petition for certiorari in accordance with Rule 65, but
exclusively with the Supreme Court and within a limited
period of 30 days. It will be observed t h a t , in o t h e r
cases and subject to the rule on the hierarchy of courts,
the Supreme Court has concurrent original jurisdiction
in certiorari actions with the Court of Appeals and, in
p r o p e r c a s e s , also w i t h t h e R e g i o n a l T r i a l C o u r t s .
F u r t h e r m o r e , under Rule 65, the special civil action of
certiorari there has now to be filed within 60 days.
5. It can be deduced from Sec. 2, Rule 37 t h a t a

motion for new t r i a l or r e c o n s i d e r a t i o n in t h e court
a quo, unless it be pro forma, tolls the period for appeal;
if denied, the party shall have the balance of the period
to perfect his a p p e a l from t h e j u d g m e n t . A specific
provision thereon is found in Sec. 3 of this Rule, but
with the proviso t h a t the party may in any event have
at least 5 days to file his petition.
Sec. 5. Form and contents of petition. — T h e

p e t i t i o n shall be verified and filed in e i g h t e e n (18)
legible copies. The petition shall name the
aggrieved party as petitioner and shall join as
r e s p o n d e n t s the Commission concerned and the
person or persons interested in sustaining the
j u d g m e n t , final o r d e r or r e s o l u t i o n a quo. T h e
p e t i t i o n shall state t h e facts with certainty, p r e s e n t
clearly t h e i s s u e s involved, set forth t h e g r o u n d s
787
a n d brief a r g u m e n t s r e l i e d u p o n for r e v i e w , a n d p r a y
for j u d g m e n t a n n u l l i n g o r m o d i f y i n g t h e q u e s t i o n e d
j u d g m e n t , final o r d e r or r e s o l u t i o n . Findings of
fact o f t h e C o m m i s s i o n s u p p o r t e d b y s u b s t a n t i a l
e v i d e n c e s h a l l b e final a n d n o n - r e v i e w a b l e .
T h e p e t i t i o n s h a l l be a c c o m p a n i e d by a c l e a r l y
legible d u p l i c a t e o r i g i n a l o r c e r t i f i e d t r u e copy o f
t h e j u d g m e n t , final o r d e r or r e s o l u t i o n subject
thereof, t o g e t h e r with certified t r u e copies of
such material portions of the record as are referred
to therein and other d o c u m e n t s relevant and
p e r t i n e n t t h e r e t o . The requisite n u m b e r of copies
o f t h e p e t i t i o n s h a l l c o n t a i n p l a i n c o p i e s o f all
d o c u m e n t s a t t a c h e d to t h e o r i g i n a l copy of said
petition.
The petition shall s t a t e t h e specific m a t e r i a l
d a t e s s h o w i n g t h a t i t w a s filed w i t h i n t h e p e r i o d
fixed h e r e i n , a n d s h a l l c o n t a i n a s w o r n c e r t i f i c a t i o n
against forum shopping as provided in the third
p a r a g r a p h o f s e c t i o n 3 , R u l e 46.
The petition shall further be accompanied by
p r o o f of s e r v i c e of a c o p y t h e r e o f on t h e C o m m i s s i o n
concerned and on the adverse party, and of the
t i m e l y p a y m e n t o f d o c k e t a n d o t h e r lawful fees.
The failure of p e t i t i o n e r to comply with any of
the foregoing r e q u i r e m e n t s shall be sufficient
g r o u n d for t h e d i s m i s s a l o f t h e p e t i t i o n , (n)
NOTES
1. J u s t like the other petitions to the Supreme Court

hereinbefore discussed, the requirements for the petition
provided by this section were taken from Supreme Court
revised Circulars Nos. 1-88, 19-91 and 28-91, with the
change which has earlier been noted t h a t the deposit
for costs shall be made upon the filing of the petition in
788
RULE 64 REVIEW OF J U D G M E N T S , ETC. S E C . 6-7
O F C O M E L E C A N D COA
addition to the payment of the docket and other lawful

fees.
2. This section requires t h a t the petition shall be

accompanied by a duplicate original or certified true copies
of the judgment, final order or resolution subject thereof,
and if material portions of the record are annexed, they
m u s t also be certified. O t h e r p e r t i n e n t or r e l e v a n t
documentary annexes need not be certified true copies,
and plain copies will suffice (see Van Melle Philippines
vs. Endaya, G.R. No. 143132, Sept. 23, 2003). For t h a t
matter, this requirement for certified copies are intended
for the annexes to the original copy of the petition. In all
the other requisite number of copies of the petition, only
plain copies of all such documents is required.
Sec. 6. Order to comment. — If t h e S u p r e m e C o u r t

finds t h e p e t i t i o n s sufficient in form a n d s u b s t a n c e ,
t h e C o u r t s h a l l o r d e r t h e r e s p o n d e n t s t o file t h e i r
c o m m e n t s o n t h e p e t i t i o n w i t h i n t e n (10) d a y s f r o m
notice thereof; otherwise, t h e Court may dismiss t h e
petition outright. The Court may also dismiss the
p e t i t i o n i f i t w a s filed m a n i f e s t l y for d e l a y , o r t h e
question raised is too unsubstantial to w a r r a n t
f u r t h e r p r o c e e d i n g s , (n)
Sec. 7. Comments of respondents. — T h e c o m m e n t s

o f t h e r e s p o n d e n t s s h a l l b e filed i n e i g h t e e n (18)
legible copies. The original shall be accompanied
by certified t r u e copies of such material portions of
the record as are referred to therein together with
other supporting papers. The requisite number of
copies of the comments shall contain plain copies
o f all d o c u m e n t s a t t a c h e d t o t h e o r i g i n a l a n d a c o p y
thereof shall be served on the petitioner.
No o t h e r pleading may be filed by any party
u n l e s s r e q u i r e d o r a l l o w e d b y t h e C o u r t , (n)
789
NOTES
1. Sec. 6 of this Rule is similar to the provisions of

the first paragraph of Sec. 6, and the second paragraph
of Sec. 8, both of Rule 65. The reason therefor is obviously
to prevent resort to the petitions under both Rules for
dilatory purposes.
2. Sec. 7 contains specific r e q u i r e m e n t s on what
should accompany and be contained in the comment of
the respondents, with the further caveat t h a t no other
pleadings shall be filed by the parties without prior leave
of the Supreme Court.
Sec. 8. Effect of filing. — T h e filing of a p e t i t i o n

for c e r t i o r a r i s h a l l n o t s t a y t h e e x e c u t i o n o f t h e
j u d g m e n t , final o r d e r or r e s o l u t i o n sought to be
reviewed, unless the S u p r e m e Court shall direct
o t h e r w i s e u p o n s u c h t e r m s a s i t m a y d e e m j u s t , (n)
Sec. 9. Submission for decision. — U n l e s s t h e

C o u r t s e t s t h e c a s e for o r a l a r g u m e n t , o r r e q u i r e s
t h e p a r t i e s to s u b m i t m e m o r a n d a , t h e case shall
b e d e e m e d s u b m i t t e d for d e c i s i o n u p o n t h e filing o f
the comments on the petition, and such other
pleadings or p a p e r s as m a y be r e q u i r e d or allowed,
o r t h e e x p i r a t i o n o f t h e p e r i o d t o d o so. (n)
NOTE
1. Sec. 8 emphasizes the basic rule t h a t the mere

filing of the petition shall not be a bar to execution where
proper under the circumstances, unless otherwise directed
by t h e S u p r e m e Court such as t h r o u g h a t e m p o r a r y
restraining order. Sec. 9, just like similar provisions in
the other Rules, is based on the provisions of Sec. 15(2),
Art. VIII of the Constitution.
790
RULE 65
CERTIORARI, PROHIBITION
AND MANDAMUS
S e c t i o n 1. Petition for certiorari. — W h e n a n y

t r i b u n a l , b o a r d o r officer e x e r c i s i n g j u d i c i a l o r
quasi-judicial functions has acted without or in
excess of its or his jurisdiction, or with grave a b u s e
of discretion a m o u n t i n g to lack or excess of its or
his jurisdiction, and there is no appeal, or any plain,
speedy, and adequate remedy in the ordinary course
of l a w , a p e r s o n a g g r i e v e d t h e r e b y m a y file a v e r i f i e d
p e t i t i o n in t h e p r o p e r court, alleging t h e facts with
certainty and praying that judgment be rendered
annulling or modifying the proceedings of such
t r i b u n a l , b o a r d o r officer, a n d g r a n t i n g s u c h
i n c i d e n t a l reliefs as law a n d j u s t i c e m a y r e q u i r e .
T h e p e t i t i o n shall be a c c o m p a n i e d by a
certified t r u e copy of the judgment, order or reso-
l u t i o n s u b j e c t t h e r e o f , c o p i e s o f all p l e a d i n g s a n d
documents relevant and pertinent thereto, and a
sworn certification of non-forum shopping as
provided in the third p a r a g r a p h of section 3, Rule
46. ( l a )
NOTES
1. This amended section now expressly includes a

r e s p o n d e n t exercising quasi-judicial functions. The
second paragraph has also been amended to additionally
r e q u i r e a certification of non-forum shopping which
assumes added importance by reason of the fact that,
under the present procedural laws, the Supreme Court,
Court of Appeals and Regional Trial Courts have
concurrent jurisdiction in actions for certiorari, prohibition
a n d m a n d a m u s , hence forum s h o p p i n g or m u l t i p l e
791
RULE 65 R E M E D I A L LAW C O M P E N D I U M SEC. l
petitions on the same case may more easily be resorted to

by unscrupulous litigants. This requirement is reiterated
in the succeeding two sections on prohibition and man-
damus. See also the notes under Sec. 4 of this Rule.
2. The writ of certiorari is proper to correct errors of
jurisdiction committed by the lower court, or grave abuse
of discretion which is tantamount to lack of jurisdiction.
Where the error is not one of jurisdiction but an error
of law or fact which is a mistake of judgment, appeal is
the remedy (Matute vs. Macadaeg, et al, 99 Phil. 340;
De Galasison vs. Maddela, et al, L-24584, Oct. 30, 1975).
However, the Supreme Court has doctrinally observed

that it is sometimes necessary to delve into factual issues
in order to resolve allegations of grave abuse of discretion
as a ground for the special civil actions of certiorari and
prohibition. Also, the conflicting views on the factual issues
or the insufficiency of evidence supporting the respective
allegations of the parties necessitated the review thereof
by the respondent Court of Appeals at the very least to
determine the existence of grave abuse of discretion. This
situation may validly be treated as an exception to the
restrictive rule that in said special civil actions only strictly
errors of jurisdiction can be considered by the respondent
court (Balba, vs. Peak Development, Inc., et al, G.R.
No. 148288, Aug. 12, 2005).
3. The use of the term "person aggrieved" in Sec. 1

is not construed to mean t h a t any person who feels injured
by the lower court's order or decision can question said
court's disposition via certiorari as provided in this Rule.
Where t h e o r d e r or decision in q u e s t i o n u n d e r w e n t
a d v e r s a r i a l proceedings in the r e s p o n d e n t court, the
"person aggrieved" referred to is one who was a party with
legal s t a n d i n g founded upon m a t e r i a l i n t e r e s t in the
proceedings before said court. This can further be gleaned
from the fact that a special civil action for certiorari may
generally be dismissed motu proprio if the petitioner
792
RULE 65 CERTIORARI, PROHIBITION SEC 1
AND MANDAMUS
therein had failed to file a motion for reconsideration of

the challenged order or decision in the respondent court,
which presupposes t h a t he is a party in interest (Tang,
et al. vs. CA, et al., G.R. No. 117204, Feb. 11, 2000).
4. An original action for certiorari is an independent
action and does not interrupt the course of the principal
action nor t h e r u n n i n g of t h e r e g l e m e n t a r y p e r i o d s
involved in t h e proceedings (Palomares vs. Jimenez,
90 Phil. 773). Consequently, to arrest the course of the
principal action during the pendency of the certiorari
proceedings, there must be a restraining order or a writ of
preliminary injunction from the appellate court directed
to the lower court (Santiago vs. Vasquez, infra). The
same is t r u e with respect to prohibition and mandamus.
The petitions for these writs under this Rule are original
and independent actions and not continuations or p a r t s
of the trial resulting in the judgment complained of.
The m e r e p e n d e n c y of a special civil action for
certiorari, in connection with a pending case in a lower
court, does not interrupt the course of the latter if there
is no writ of injunction (Peza, et al. vs. Alikpala, et al.,
L-29749, April 15, 1988; Aparicio vs. Andal, etc., et al,
G.R. Nos. 86587-93, July 25, 1989) or restraining order.
5. For the distinctions between the original special
civil action for certiorari under this Rule and certiorari as
a mode of appellate review, see Note 6 under Sec. 1, Rule
45. Formerly, these special civil actions in Rule 65 were
only required to be filed within a reasonable period as no
time frame for the filing thereof had been fixed by this
Rule (Flordelis vs. Mar, G.R. No. 54887, May 22, 1982;
Toledo vs. Pardo, et al, G.R. No. 56761, Nov. 19, 1982;
Cubar vs. Mendoza, G.R. No. 55035, Feb. 23, 1983).
However, p e t i t i o n e r could be guilty of l a c h e s if he
failed to avail of these remedies within a reasonable
period (Mun. of Carcar vs. CFJ of Cebu, L-31628,
Dec. 27, 1982). This Rule now provides for a specific
793
period for filing said petitions, (see Sec. 4.).

6 . C e r t i o r a r i , p r o h i b i t i o n a n d m a n d a m u s are
distinguished as follows:
a. With respect to the purpose of the writ, certiorari
is intended to correct an act performed by the respondent;
prohibition is intended to p r e v e n t t h e commission or
carrying out of an act; while mandamus is intended to
compel the performance of the act desired.
b. With respect to the act sought to be controlled,
certiorari extends only to discretionary acts; prohibition,
to discretionary and ministerial acts; and mandamus, to
ministerial acts.
c. With respect to the respondent, certiorari lies
only against a respondent exercising judicial or quasi-
judicial functions, while both prohibition and mandamus
are available against respondents who exercise judicial
and/or non-judicial functions.
7. A r e s p o n d e n t is said to be exercising judicial
functions where he has the power to determine what the
law is, what are the legal rights of the parties, and he
undertakes to determine these questions and adjudicate
upon the rights of the parties (see Ruperto vs. Torres, etc.,
et al., 100 Phil. 1098 fUnrep.J; Mun. Council of Lemery
vs. Prov. Board of Batangas, 56 Phil. 266). It is necessary
t h a t there be a law providing for the adjudication of rights
and t h e t r i b u n a l , board, or officer h a s t h e power to
determine the law and adjudicate such rights. Hence, a
committee for determining honors for students (Santiago,
et al. vs. Bautista, et al., L 25024, Mar. 30, 1970) or
a board of judges for an oratorical contest, etc. (Felipe vs.
Leuterio, et al., 91 Phil. 482) cannot be proper respondents
in certiorari proceedings.
8. The respondent acts without jurisdiction if he does

not have the legal power to determine the case. There is
excess of jurisdiction where the respondent, being clothed
794
RULE 65 CERTIORARI, PROHIBITION SEC. 1
AND MANDAMUS
w i t h t h e power to d e t e r m i n e t h e case, o v e r s t e p s his

authority as determined by law (Rocha vs. Crossfield,
6 Phil. 355). And there is grave abuse of discretion where
the respondent acts in a capricious, whimsical, arbitrary
or despotic m a n n e r in the exercise of his judgment as to
be said to be equivalent to lack of jurisdiction (Alafriz vs.
Nable, 62 Phil. 278; Abad Santos vs. Prov. of Tarlac,
66 Phil. 480).
a. Excess of jurisdiction, as distinguished from lack
of jurisdiction, refers to any act which although falling
within the general powers of the judge is not authorized
and is consequently void with respect to the particular
case because t h e conditions u n d e r which he was only
authorized to exercise his general power in t h a t case did
not exist and, therefore, the judicial power was not legally
exercised (Broom vs. Douglas, 175 Ala. 268, 57 S. 860;
see Tengco vs. Jocson, 43 Phil. 716).
b. Grave abuse of discretion means such capricious
and whimsical exercise of judgment as is equivalent to
lack of jurisdiction, or, in other words, where the power is
exercised in an arbitrary or despotic manner by reason
of passion or personal hostility, and it must be so patent
and gross as to amount to an evasion of positive duty or
to a virtual refusal to perform the duty enjoined or to
act in contemplation of law. It is not sufficient t h a t a
tribunal, in the exercise of its power, abused its discretion;
such abuse must be grave (Benito vs. COMELEC, et al.,
G.R. No. 134913, Jan. 19, 2001, citing cases;. The
remedies in Rule 65 are extraordinary, and their use is
restricted to truly extraordinary cases (see Republic vs.
Villarama, Jr., etc., et al., G.R. No. 117733, Sept. 5, 1997).
9. A requisite common to the writs of certiorari,
prohibition and mandamus is t h a t these writs may be
availed of only if there is no appeal or any plain, speedy
and adequate remedy in the ordinary course of law from
the acts of the respondent.
795
a. Where the proper remedy is appeal, the action for

certiorari will not be entertained (Nocon vs. Geronimo, etc.,
et al, 101 Phil. 735). Certiorari is not a remedy for errors
of judgment. Errors of judgment are correctible by appeal;
e r r o r s of j u r i s d i c t i o n a r e r e v i e w a b l e by c e r t i o r a r i
(Lamangan vs. De la Cruz, et al., L-27950, July 29, 1971;
Phil. Surety & Insurance Co. vs. Jacala, 108 Phil. 177;
Bimeda vs. Perez, et al., 93 Phil. 636). The original action
for certiorari is not a substitute for appeal (Lobite vs.
Sundiam, etc., et al. L-38278, June 28, 1983), especially
when the remedy of appeal was lost through the fault of
the party.
However, even when appeal is available and is the
proper remedy, the Supreme Court has allowed a writ
of certiorari (1) where the appeal does not constitute a
speedy and adequate remedy (Salvadades vs. Pajarillo,
et al., 78 Phil. 77), as where 33 appeals were involved
from orders issued in a single proceeding which will
inevitably result in a proliferation of more appeals (PCIB
vs. Escolin, et al., L-27860 and L-27896, Mar. 29, 1974);
(2) where the orders were also issued either in excess of
or w i t h o u t j u r i s d i c t i o n (Aguilar vs. Tan, L-23600,
Jan. 30, 1970; Bautista, et al. vs. Sarmiento, et al.,
L-45137, Sept. 23, 1985); (3) for c e r t a i n s p e c i a l
considerations, as public welfare or public policy (see
Jose vs. Zulueta, et al., L-16598, May 31, 1961, and
cases cited therein); (4) where, in criminal actions, the
court rejects rebuttal evidence for the prosecution as, in
case of acquittal, there could be no remedy (People vs.
Abalos, L-29039, Nov. 28, 1968); (5) where the order is a
patent nullity (Marcelo vs. De Guzman, et al., L-29077,
June 29, 1982); and (6) where the decision in the certiorari
case will avoid future litigations (St. Peter Memorial Park,
Inc. vs. Campos, et al, L-38280, Mar. 21, 1975).
Furthermore, even if the defendant had perfected his
appeal from the j u d g m e n t by default rendered by the
Court of First Instance, he can still avail of certiorari to
796
AND MANDAMUS
challenge a writ of execution issued by the trial court

pending said appeal (Omico Mining & Industrial Corp.
vs. Vallejos, L-38974, Mar. 25, 1975).
b. As already stated, where the remedy of appeal was
lost t h r u t h e fault or negligence of t h e petitioner, he
cannot avail of the writ of certiorari (Florendo vs. CFI of
Ilocos Sur, 104 Phil. 661; Phil. Surety & Insurance Co.
vs. Jacala, supra; Jose vs. Zulueta, supra; Ago vs. Baslon,
L-19631, Jan. 31, 1964; De la Cruz, et al. vs. IAC, et al,
G.R. No. 63612, Jan. 31, 1985), except where the court
acted without jurisdiction in issuing the order complained
of (Crisostomo vs. Endencia, 66 Phil. 1).
10. Also, all these petitions must be verified and, in
the case of certiorari and prohibition, accompanied by
certified copies of the judgment or order complained of
and the pertinent pleadings and documents. They can all
be filed either in the Supreme Court, Court of Appeals,
or Regional Trial Court (Sec. 4). The requirement for
verification is relaxed where all the issues involved appear
in and can readily be verified in the records of the case
w i t h t h e c o u r t a quo or a r e a n n e x e d to t h e p e t i t i o n
(see Note 6 under Sec. 4, Rule 7).
11. The p e t i t i o n s a r e specifically r e q u i r e d to be
accompanied by a certified true copy of the judgment or
order subject thereof. The precursor of these revised
Rules, which was A d m i n i s t r a t i v e C i r c u l a r No. 3-96,
provided t h a t a certified true copy shall be such other copy
furnished to a party at his instance or in his behalf, duly
authenticated by the authorized officer or representatives
of the issuing entity. That certified true copy must further
comply with all the regulations of the issuing entity and
it is the authenticated original of such certified true copy,
and not a mere xerox copy thereof, which can be utilized
as an annex to the petition or other initiatory pleading
(NYK International Knitwear Corp., etc., et al. vs. NLRC,
et al, G.R. No. 146267, Feb. 12, 2003).
797
12. A r e m e d y is c o n s i d e r e d "plain, speedy and

adequate" if it will promptly relieve the petitioner from
the injurious effects of the judgment and the acts of the
lower court or agency (Silvestre vs. Torres, et al., 75 Phil.
885). Thus, while in the regular course of appeal the
interlocutory acts of the court may be assigned as errors,
such remedy may not necessarily be adequate as it can be
availed of only in the future and prejudice may have been
caused in the interim, hence certiorari is permitted to be
availed of (Villalon, et al. vs. IAC, et al, G.R. No. 73751,
Sept. 24, 1986).
13. The rule is that, before certiorari may be availed

of, t h e p e t i t i o n e r m u s t h a v e filed a motion for the
reconsideration by the lower court of the act or order
complained of (Villa-Rey Transit vs. Bello, L-18957,
April 23, 1963). The purpose of this requirement is to
enable the lower court, in the first instance, to pass upon
and correct its mistakes without the intervention of the
higher court. For this reason, it has been held that such
motion for reconsideration, reiterating the same grounds
against the order sought to be reconsidered, is not covered
by t h e pro forma r u l e if it is d i r e c t e d a g a i n s t an
i n t e r l o c u t o r y o r d e r . In t h e case of a final order or
judgment, a motion for reconsideration prior to taking
an appeal is not required; hence, in such case, the pro
forma rule applies (BA Finance Corp. vs. Pineda, et al,
G.R. No. 61628, Dec. 29, 1982).
However, even in original actions under this Rule, a
motion for reconsideration of an interlocutory order may
be dispensed with:
(a) Where t h e o r d e r is a p a t e n t nullity (Vigan
Electric Light Co., Inc. vs. Public Service Commission,
L-19850, Jan. 30, 1964; Luzon Surety Co. vs. Marbella, et
al, 109 Phil. 734; Dir. of Lands vs. Santamaria, 44 Phil
594), as w h e r e t h e c o u r t a quo had no j u r i s d i c t i o n
(Malayang Manggagawa sa Esso vs. Esso Standard, Inc.,
L-24224, July 20, 1965);
798
AND MANDAMUS
(b) Where t h e questions raised in t h e c e r t i o r a r i

proceeding have been duly raised and passed upon by
the lower court (Fortich-Celdran vs. Celdran, L-22677,
Feb. 28, 1967), or are the same as those raised and passed
upon in the lower court (Pajo, etc., et al. vs. Ago, et al.,
108 Phil. 905; Legaspi Oil Co. vs. Geronimo, L-28101,
Mar. 31, 1977);
(c) W h e r e t h e r e is an u r g e n t n e c e s s i t y for t h e
resolution of the question and any further delay would
prejudice t h e i n t e r e s t s of t h e G o v e r n m e n t (Vivo vs.
Cloribel, L-23239, Nov. 23, 1966; National Electrification
Administration vs. CA, et al., L-32490, Dec. 29, 1983) or
of t h e p e t i t i o n e r (Bache & Co. [Phil.], Inc. vs. Ruiz,
L-42409, Feb. 27, 1971; Gonzales, et al. vs. IAC, et al.,
G.R. No. 63614, Aug. 28, 1984);
(d) Where, under the circumstances, a motion for
reconsideration would be useless, as where t h e court
had already indicated t h a t it would deny any motion
for reconsideration of its questioned order (People vs.
Palacio, etc., et al., 108 Phil. 220);
(e) Where petitioner was deprived of due process
and t h e r e is extreme urgency for relief (Luzon Surety
Co. vs. Marbella, et al., supra);
(f) Where, in a criminal case, relief from an order of
arrest is urgent and the granting of such relief by the
trial court is improbable (Matutina vs. Buslon, et al.,
109 Phil. 140);
(g) Where the proceedings in the lower court are a
nullity for lack of due process (Matute vs. CA, et al.,
L-26751, Jan. 31, 1969);
(h) Where the proceeding was ex parte or in which
the petitioner had no opportunity to object (Republic vs.
Maglanoc, L-16848, Feb. 27, 1963); and
(i) Where the issue raised is one purely of law or
799
where public interest is involved (PALEA vs. Phil. Air

Lines, Inc., et al, L-31396, Jan. 30, 1982; Marawi
Marantao General Hospital, et al. vs. CA, et al.,
G.R. No. 141008, Jan. 16, 2001).
14. Questions offset cannot be raised in an original
action for certiorari. Only established or admitted facts
can be considered (Rubio vs. Reyes, et al., L-24581,
May 27, 1968; Jimenez, et al. vs. NLRC, et al., G.R.
No. 116960, April 12, 1996; Suarez vs. NLRC, et al, G.R.
No. 124723, July 31, 1998).
15. In original actions for certiorari under this Rule,
the findings of fact of t h e Court of Appeals are not
conclusive or binding upon the Supreme Court, unlike the
general rule in appeals by certiorari under Rule 45. That
theory of conclusiveness does not apply in this special
civil action under Rule 65 (Medran vs. CA, et al, 83 Phil.
164).
Sec. 2. Petition for prohibition. — W h e n t h e p r o -

c e e d i n g s o f a n y t r i b u n a l , c o r p o r a t i o n , b o a r d , officer
or person, w h e t h e r exercising judicial, quasi-
judicial or ministerial functions, are without or in
e x c e s s o f its o r h i s j u r i s d i c t i o n , o r w i t h g r a v e a b u s e
of d i s c r e t i o n a m o u n t i n g to l a c k or e x c e s s of its or
his jurisdiction, and t h e r e is no appeal or any other
plain, speedy, and a d e q u a t e remedy in the ordinary
c o u r s e of law, a p e r s o n a g g r i e v e d t h e r e b y m a y file
a verified p e t i t i o n i n t h e p r o p e r c o u r t , a l l e g i n g t h e
facts w i t h c e r t a i n t y a n d p r a y i n g t h a t j u d g m e n t b e
r e n d e r e d c o m m a n d i n g t h e r e s p o n d e n t t o d e s i s t from
f u r t h e r p r o c e e d i n g s i n t h e a c t i o n o r m a t t e r specified
therein, or otherwise granting such incidental
reliefs a s law a n d j u s t i c e m a y r e q u i r e .
The petition shall likewise be accompanied by
a certified t r u e copy of t h e j u d g m e n t or o r d e r subject
thereof, copies of all p l e a d i n g s a n d d o c u m e n t s
800
AND MANDAMUS
relevant and pertinent thereto, and a sworn

certification of non-forum shopping as provided in
t h e t h i r d p a r a g r a p h of s e c t i o n 3, Rule 46. (2a)
NOTES
1. Prohibition is a preventive remedy. However, to

prevent the respondent from performing the act sought to
be prevented during the pendency of the proceedings for
the writ, the petitioner should obtain a restraining order
and/or a writ of preliminary injunction.
2. Prohibition lies a g a i n s t judicial or ministerial

functions, but not to legislative functions (Ruperto, etc.
vs. Torres, etc., et al., 100 Phil. 1098 fUnrep.J). It is
available against public officers who were appointed under
an unconstitutional executive order (Mun. of San Joaquin
vs. Siva, et al., L-19870, Mar. 18, 1967).
3. In o r d e r t h a t prohibition will lie a g a i n s t an

executive officer, the petitioner must first exhaust all
a d m i n i s t r a t i v e r e m e d i e s , as prohibition is available
only w h e n t h e r e a r e n o o t h e r p l a i n , s p e e d y a n d
a d e q u a t e r e m e d i e s i n t h e o r d i n a r y c o u r s e o f law
(Cabedo, et al. vs. Director of Lands, et al., L-12777,
May 23, 1961).
4. C e r t i o r a r i , prohibition and m a n d a m u s do not
generally lie, subject to well-settled exceptions, against
the legislative and executive branches or the members
thereof acting in the exercise of their official functions,
basically in consideration of the respect due from the
judiciary to said departments of co-equal and coordinate
ranks under the principle of separation of powers. Also,
the acts sought to be impugned may be essentially poli-
tical in nature and, as a rule, non-justiciable, since the
r e m e d y t h e r e f r o m lies not in t h e c o u r t s but in t h e
department in regard to which full discretionary authority
is vested, or by the submission thereof to the judgment
801
of the citizenry in the proper political forum. However,

this doctrine of political question, as a defense and
prohibition against justiciability, has significantly and
appreciably been delimited in its application and may not,
therefore, be as readily available as it was under the
former constitutional and procedural governance, in view
of the provisions of the 1987 Constitution, Sec. 1, Art. VIII
whereof provides in part as follows:
"Judicial power includes the duty of the courts of
justice to settle actual controversies involving rights
which are legally demandable and enforceable, and
to determine whether or not there has been a grave
abuse of discretion a m o u n t i n g to lack or excess
of jurisdiction on the part of any branch or instru-
mentality of the Government."
This provision, however, does not apply to or provide
for justiciability over a case or an issue therein where a
political question in sensu strictiore is actually involved.
5. While p r o h i b i t i o n does not o r d i n a r i l y lie to
r e s t r a i n an act which is already a fait accompli, the
Supreme Court has made an exception to this doctrine
in Tan, et al. vs. COMELEC, et al. (G.R. No. 73155,
July 11, 1986) where the creation of a new province out
of the original territory of Negros Occidental had allegedly
been approved in a plebiscite and the existence of a new
province had already been proclaimed. The Court noted
the patent illegality and unconstitutionality of the creation
of said new province and the mischief and dangerous
precedent of such an act whereby those in the corridors of
power could avoid judicial intervention and review by
merely speedily and stealthily completing the commission
of an illegality.
6. Prohibition, and not mandamus, is the remedy

where a motion to dismiss is improperly denied (Enriquez
vs. Macadaeg, 84 Phil. 674).
802
AND MANDAMUS
Sec. 3. Petition for mandamus. — W h e n a n y

tribunal, corporation, board, officer or p e r s o n
unlawfully neglects the performance of an act
w h i c h the law specifically enjoins as a duty
r e s u l t i n g from an office, trust, or station, or
unlawfully e x c l u d e s another from the use and
e n j o y m e n t of a r i g h t or office to w h i c h s u c h o t h e r
i s e n t i t l e d , a n d t h e r e i s n o o t h e r plain, s p e e d y a n d
a d e q u a t e r e m e d y in t h e ordinary c o u r s e of law, t h e
p e r s o n a g g r i e v e d t h e r e b y may file a verified petition
in t h e p r o p e r court, a l l e g i n g the facts w i t h c e r t a i n t y
and praying that judgment be rendered com-
manding the respondent, immediately or at some
o t h e r t i m e to be specified by t h e court, to do t h e act
required to be done to protect the rights of the
p e t i t i o n e r , a n d t o pay t h e d a m a g e s s u s t a i n e d b y t h e
petitioner by reason of the wrongful acts of the
respondent.
The petition shall also contain a sworn
c e r t i f i c a t i o n of non-forum s h o p p i n g as p r o v i d e d in
t h e t h i r d p a r a g r a p h of s e c t i o n 3, Rule 46. (3a)
NOTES
1. "Discretion," when applied to public functiona-

ries, m e a n s a power or right conferred upon t h e m by
law of acting officially, u n d e r certain circumstances,
uncontrolled by the judgment or conscience of others. A
p u r e l y m i n i s t e r i a l act or duty, in contradiction to a
discretional act, is one which an officer or tribunal performs
in a given s t a t e of facts, in a prescribed m a n n e r , in
obedience to the mandate of a legal authority, without
regard to or the exercise of his own judgment upon the
propriety or impropriety of the act done. If the law
imposes a duty upon a public officer and gives him the
right to decide how or when the duty shall be performed,
such duty is discretionary and not ministerial. The duty
is ministerial only when the discharge of the same requires
803
neither the exercise of official discretion or judgment

(Samson vs. Barrios, 63 Phil. 198; Lemi vs. Valencia,
L-20768, Nov. 29, 1968; Meralco Securities Corp. vs.
Savellano, et al., L-36181, Oct. 23, 1982).
2. Mandamus will lie to compel the performance of a
ministerial duty, not a discretionary duty (Sy Ha vs.
Galang, L-18513, April 27, 1963), and petitioner must
show that he has a well defined, clear and certain right to
warrant the grant thereof (Avenue Arrastre & Stevedoring
Corp. vs. Commissioner of Customs, L-44674, Feb. 28,
1983; Sales vs. Mathay, et al., L 39537, May 31, 1984).
T h u s , m a n d a m u s will not lie to compel t h e school
authorities to graduate a student who has failed to comply
with the disciplinary and academic rules of the school as
said w r i t c a n n o t review or control t h e exercise of
discretionary powers (Magtibay vs. Garcia, L-28971,
Jan. 25, 1983). The same rule applies to a student who
was denied readmission to a school on similar grounds
(Tangonan vs. Paho, et al., L 45157, June 27, 1985).
3. A writ of mandamus will not issue to control the

exercise of official discretion or judgment, or to alter or
review the action t a k e n in the proper exercise of the
discretion or judgment, for the writ cannot be used as a
writ of error or other mode of direct review (34 Am.
Jur. 856). This doctrine underlies our rules on this special
civil action, which is of American vintage, and exceptions
to or permutations thereof are generally not allowed in
the ordinary course of procedure.
4. However, in e x t r e m e s i t u a t i o n s generally in
criminal cases, mandamus lies to compel the performance
by the fiscal of what ostensibly are discretionary functions
where, by reason of grave abuse of discretion onTiis part,
his actuations are t a n t a m o u n t to a willful refusal to
perform a duty specifically required by law (see Notes 4
and 5 under Sec. 1, Rule 110).
804
RULE 65 CERTIORARI. PROHIBITION SEC. 3
AND MANDAMUS
It has also been held t h a t while the discretion of a

court will not ordinarily be controlled by mandamus, where
such discretion of the court can be legally exercised in only
one way and it refuses to act, mandamus will lie to compel
the court to excercise it. Mandamus can be employed to
correct errors of lower courts to prevent a failure of justice
or irreparable injury where there is a clear legal right and
there is an absence of any adequate remedy, as where
there is no appeal or such remedy by appeal is inadequate.
It may also be employed to prevent an abuse of discretion
or to correct an arbitrary action which does not amount to
exercise of discretion (People vs. Orais, 65 Phil. 744;
Tuvera-Luna, Inc. vs. Nable, 67 Phil. 340).
F u r t h e r , the general rule is t h a t in the performance
of an official duty or act involving discretion, such official
can only be directed by mandamus to act but not to act
one way or the other. An exception to this rule is where
there has been gross abuse of discretion, manifest injustice,
or p a l p a b l e e x c e s s of a u t h o r i t y , in which c a s e t h e
r e s p o n d e n t c a n be o r d e r e d to a c t in a p a r t i c u l a r
m a n n e r , especially w h e r e a c o n s t i t u t i o n a l r i g h t h a s
been violated (Kant Wong, et al. vs. PCGG, et al., G.R.
No. 79484, Dec. 7, 1987).
5. While mandamus lies to compel a court to give
due c o u r s e to t h e a p p e a l which it h a s e r r o n e o u s l y
dismissed, m a n d a m u s will not lie to compel a court to
dismiss the appeal as the remedy is to assign such failure
to dismiss as an error in the course of the appeal (Lapisan
vs. Alfonso, 78 Phil. 842).
6. Where the appeal is frivolous and intended solely
for delay, t h e a p p e l l a t e court may p r o p e r l y deny a
petition for mandamus seeking to compel the trial court
to certify the appeal (MRR Co. vs. Ballesteros, L-19161,
April 29, 1966).
805
7. Formerly, when there was no period fixed for the

filing of the petition for mandamus, the time was variable
as the ends of justice may demand (Reparations Commis-
sion vs. Macadaeg, L-20619, July 29, 1968), but the
petition must be filed within a reasonable time and the
petitioner must not be guilty of laches (Contreras vs.
Villaraza, et al., G.R. No. 53372, Aug. 21, 1980). The
policy of the Supreme Court is not to deny the writ if the
result would be to deprive a party of his substantive rights
and leave him without remedy (Centenera vs. Yatco, 106
Phil. 1064; Phil. Merchant Marine Academy vs. CA,
et al, L-38212, Feb. 27, 1976). Now, under the next
section, the petition must be filed not later than 60 days
after notice of the judgment, order or resolution.
8. Where a municipality fails without justifiable

cause to pay a final money j u d g m e n t against it, the
claimant may avail of mandamus to compel the enactment
and the corresponding disbursement of municipal funds
therefor. Aside from the fact that it is a ministerial and
mandatory duty to obey a final judgment, this remedy is
further justified by the fact that public funds or property
necessary for public use are generally exempt from
a t t a c h m e n t or execution, hence t h e c l a i m a n t would
o t h e r w i s e b e s t u c k w i t h a n e m p t y j u d g m e n t (see
Municipality of Makati vs. CA, et al, G.R. Nos. 89889-
99, Oct. 1, 1990).
9. M a n d a m u s does not lie to compel the perfor-

mance of a contractual duty (Quiogue vs. Del Rosario,
46 Phil. 337), especially if the contract is disputed, and
such mandamus suit cannot be converted into an ordinary
action for breach of contract (NAMARCO vs. Cloribel,
L-27260, April 29, 1968). Sec. 3 refers to acts enjoined
by law to be done, hence, contractual duties are outside
the scope of the writ (Prov. ofPangasinan vs. Reparations
Commission, et al, L-27448, Nov. 29, 1977). Furthermore,
t h e r e are o t h e r available r e m e d i e s in t h e ordinary
806
R U L E 65 CERTIORARI, PROHIBITION SEC. 3
AND MANDAMUS
course of law to enforce contractual obligations. See

Commission on Elections, et al. vs. Quijano-Padilla, et
al. (G.R. No. 151992, Sept. 18, 2002) where this m a t t e r
was extensively discussed, together with the cases cited
therein.
10. M a n d a m u s can be availed of only by the party

who has direct legal interest in the right sought to be
enforced. However, if the question is one of public right
and the object of the m a n d a m u s suit is to procure the
performance of a public duty, it is sufficient to show t h a t
the petitioner is a citizen even if he has no special interest
in t h e r e s u l t (Benitez vs. Paredes, et al., 52 Phil.
113; Tahada, et al. vs. Tuvera, et al, G.R. No. 63915,
April 24, 1985).
11. A petition for mandamus is premature if there

are administrative remedies available to the petitioner
(Perez vs. City Mayor of Cabanatuan, L-16786, Oct. 31,
1961). W h e r e , however, the case involves only legal
questions, the litigant need not exhaust all administrative
remedies before such judicial relief can be sought (Espahol
vs. The Chairman, etc., of the PVA, L-44616, June 29,
1985).
12. Where the issue of damages was raised in the

trial court in the same petition for certiorari, prohibition
and m a n d a m u s and the adverse party had ample
opportunity to defend itself, the court may validly award
such d a m a g e s . Said claim w a s in t h e n a t u r e of an
independent cause of action, distinct and separate from
the issue of whether or not mandamus will issue, but joined
with the cause of action for the writs prayed for without
opposition on the part of the respondent therein. This is
allowed by Rule 135 which permits the adoption of any
suitable mode or proceeding if no specific procedure is
pointed out and also in order to avoid mutiplicity of
suits (Executive Secretary, et al. vs. CA, et al, L-37999,
June 10, 1988).
807
13. In a special civil action for mandamus in the Court

of Appeals, said court has the power to award damages
prayed for as an incident or the result of the respondent's
wrongful act in failing and refusing to do the act required
to be done. The Solicitor General's theory that the rule
in question is a mere procedural one allowing joinder of
an action of m a n d a m u s and a n o t h e r for damages is
untenable, for it implies that a claim for damages arising
from the commission or failure to do an act subject of a
mandamus suit may be litigated separately from the latter.
Furthermore, the fact that the petitioner has obtained
authority for partial execution of the judgment, consisting
of his reinstatement and payment of back salaries, does
not estop him from pursuing his claim for damages against
the respondent for the latter's refusal to comply with a
final and executory judgment of competent authority. The
Court of Appeals acted correctly in allowing the petitioner
to pursue said claim for damages by treating its judgment
in the m a n d a m u s action as divisible and capable of
being enforced in parts (Vital-Gozon, etc. vs. CA, et al.,
G.R. No. 101428, Aug. 3, 1992).
Sec. 4. When and where to file petition . — The

petition shall be filed not later t h a n sixty (60) days
from notice of the j u d g m e n t , order or resolution.
In case a motion for r e c o n s i d e r a t i o n or n e w trial
is timely filed, w h e t h e r such motion is required or
not, t h e petition shall be filed not later than sixty
(60) days c o u n t e d from notice of the denial of t h e
motion.
If the petition relates to an act or an omission
of a m u n i c i p a l trial c o u r t or of a c o r p o r a t i o n , a
board, an officer or a person, it shall be filed with
t h e R e g i o n a l Trial Court e x e r c i s i n g j u r i s d i c t i o n
over the territorial areas as defined by the Supreme
Court. It may also be filed with the Court of Appeals
or w i t h t h e S a n d i g a n b a y a n , w h e t h e r or not the
808
AND MANDAMUS
s a m e is in a i d of t h e court's a p p e l l a t e j u r i s d i c t i o n .
If t h e p e t i t i o n i n v o l v e s an act or o m i s s i o n of a quasi-
j u d i c i a l a g e n c y , u n l e s s o t h e r w i s e p r o v i d e d b y law
or t h e s e r u l e s , t h e p e t i t i o n shall be filed w i t h a n d
be c o g n i z a b l e o n l y by t h e Court of A p p e a l s .
In election cases involving an act or an

o m i s s i o n of a m u n i c i p a l or a r e g i o n a l trial court,
t h e p e t i t i o n shall be filed e x c l u s i v e l y w i t h the
C o m m i s s i o n o n E l e c t i o n s , i n aid o f i t s a p p e l l a t e
jurisdiction. (As amended in A.M. No. 07-7-12-SC,
effective Dec. 27, 2007)
NOTES
1. In the absence of special reasons, the Supreme

Court although it has concurrent original jurisdiction with
the Court of First Instance, will not take cognizance of
these petitions. This is especially true where the petition
involves questions of fact and may entail reception of
evidence (Veraguth vs. Isabela Sugar Co., 57 Phil. 266;
Vergara vs. Suelto, et al., G.R. No. 74766, Dec. 21, 1987).
2. A petitioner desiring to avail himself of these
extraordinary writs is not at complete liberty to file his
petition in any of the above-stated courts just because
they have concurrent original jurisdiction over the same.
He cannot, through whim or caprice or to secure an undue
a d v a n t a g e , d i s r e g a r d t h e h i e r a r c h y of c o u r t s in our
judicial system, which hierarchy is one of the structural
aspects intended for the orderly administration of justice.
Thus, in the certiorari case of Santiago vs. Vasquez,
et al. (G.R. Nos. 99289-90, J a n . 27, 1992), the Supreme
Court had the occasion to stress the rule to be observed in
this regard, as follows:
"One final observation. We discern in the pro-
ceedings in this case a propensity on the p a r t of
809
petitioner, and, for that matter, the same may be said

of a n u m b e r of l i t i g a n t s who i n i t i a t e recourses
before us, to disregard the hierarchy of courts in our
judicial system by seeking relief directly from this
Court despite the fact that the same is available in
the lower courts in the exercise of their original or
concurrent jurisdiction, or is even mandated by law
to be sought therein. This practice must be stopped,
not only because of the imposition upon the precious
time of this Court but also because of the inevitable
and resultant delay, intended or otherwise, in the
a d j u d i c a t i o n of t h e case which often has to be
remanded or referred to the lower court as the proper
forum under the rules of procedure, or as better
equipped to resolve the issues since this Court is not
a trier of facts. We, therefore , reiterate the judicial
policy that this Court will not entertain direct resort
to it unless the redress desired cannot be obtained in
the a p p r o p r i a t e courts or where exceptional and
compelling c i r c u m s t a n c e s justify a v a i l m e n t of a
remedy within and calling for the exercise of our
primary jurisdiction.
For the guidance of the bench and the bar, we
elucidate t h a t such policy includes the m a t t e r of
petitions or motions involving hold departure orders
of the trial or lower courts. Parties with pending
cases therein should apply for permission to leave
the country from the very same courts which, in the
first instance, are in the best position to pass upon
such applications and to impose the appropriate
conditions therefor since they are conversant with the
facts of the cases and the ramifications or implications
thereof. Where, as in t h e p r e s e n t case, a hold
departure order has been issued ex parte or motu
proprio by said court, the party concerned must first
exhaust the appropriate remedies therein, through
a motion for reconsideration or other proper sub-
810
RULE 65 CERTIORARI. PROHIBITION SEC. 4
AND MANDAMUS
mission or by filing the requisite application for travel

abroad. Only where all the conditions and require-
ments for the issuance of the extraordiary writs of
c e r t i o r a r i , prohibition o r m a n d a m u s i n d u b i t a b l y
obtain against a disposition of the lower courts may
our power of s u p e r v i s i o n over said t r i b u n a l s be
invoked through the appropriate petition assailing on
jurisdictional or clearly valid grounds their actuations
therein."
This policy of the Supreme Court not to entertain
direct resort to it unless compelling justification exists
therefor, as earlier explained, has been reiterated
in s u b s e q u e n t cases, such as Uy vs. Contreras, et al.
(G.R. No. 123352, Feb. 7, 1996), Bercero vs. De Guzman
(G.R. No. 123573, Feb. 28, 1996), Advincula vs. Legaspi,
et al. (G.R. No. 125500, Aug. 7, 1996), and applied with
significant effects in the later case of St. Martin Funeral
Home vs. NLRC, et al. (G.R. No. 130866, Sept. 16, 1998).
3 . F o r m e r l y , t h e C o u r t o f A p p e a l s could t a k e
cognizance of these original actions only in aid of its
appellate jurisdiction. Thus, if the decision in the main
case was not appealable, or, if appealable, the same was
within the appellate jurisdiction of the Supreme Court,
the petition could not be instituted in the Court of Appeals,
as it would not thereby be acting in aid of its appellate
jurisdiction (Breslin vs. Luzon Stevedoring Co., 84 Phil.
618; Pineda & Ampil Mfg. Co., et al. vs. Bartolome, et al.,
95 Phil. 930). Also, t h e C o u r t of A p p e a l s h a d no
jurisdiction to e n t e r t a i n a petition for certiorari and
prohibition to nullify a writ of execution as the order
granting the writ is not appealable (J.M. Tuazon & Co.,
Inc. vs. Estabello, L-20610, Jan. 9, 1975).
In a case, the Supreme Court entertained an original
action for certiorari and prohibition where the question
presented in said petition was one of law, by analogy with
t h e rule t h a t a p p e a l s on p u r e q u e s t i o n s of law a r e
811
appealable directly to the Supreme Court, even if the

j u d g m e n t t h a t may be r e n d e r e d in the main case is
appealable to the Court of Appeals (see Sangalang vs.
People, 109 Phil. 1140). However, the rule was later
clarified to the effect t h a t the original jurisdiction of the
Court of Appeals to issue said writs in aid of its appellate
jurisdiction was not determined by the kind of questions
raised, as of fact or law, but by the merits of the appeal in
view of its nature (Phil. Merchant Marine Academy vs.
CA, et al., L 38212, Feb. 7, 1976).
This controversy has felicitously been settled by
Sec. 9, B.P. Blg. 129 which confers concurrent jurisdiction
on t h e I n t e r m e d i a t e Appellate Court (now, Court of
Appeals) over original actions for the issuance of said writs
w h e t h e r or not the same a r e in aid of its appellate
jurisdiction.
Sec. 5. Respondents and costs in certain cases. —

W h e n t h e p e t i t i o n filed r e l a t e s t o t h e a c t s o r
o m i s s i o n s of a j u d g e , c o u r t , q u a s i - j u d i c i a l a g e n c y ,
t r i b u n a l , c o r p o r a t i o n , b o a r d , officer o r p e r s o n , t h e
petitioner shall join as private respondent or
respondents with such public respondent or
respondents, the person or persons interested in
s u s t a i n i n g t h e p r o c e e d i n g s i n t h e c o u r t ; a n d i t shall
be the duty of such private respondents to appear
and defend, both in his or their own behalf and in
behalf of the public respondent or respondents
affected b y t h e p r o c e e d i n g s , a n d t h e c o s t s a w a r d e d
i n s u c h p r o c e e d i n g s i n favor o f t h e p e t i t i o n e r shall
b e a g a i n s t t h e p r i v a t e r e s p o n d e n t s only, a n d not
against the judge, quasi-judicial agency, tribunal,
c o r p o r a t i o n , b o a r d , officer o r p e r s o n i m p l e a d e d a s
public respondent or respondents.
U n l e s s o t h e r w i s e specifically d i r e c t e d b y t h e
court where the petition is pending, the public
r e s p o n d e n t s s h a l l n o t a p p e a r i n o r file a n a n s w e r
812
AND MANDAMUS
or comment to the petition or any pleading therein.

If t h e c a s e is e l e v a t e d to a h i g h e r c o u r t by e i t h e r
party, the public respondents shall be included
the rein as nominal parties. However, unless
o t h e r w i s e s p e c i f i c a l l y d i r e c t e d b y t h e court, t h e y
shall n o t a p p e a r o r p a r t i c i p a t e i n t h e p r o c e e d i n g s
t h e r e i n . (5a)
NOTES
1. T h e a m e n d m e n t s in t h i s section e n u m e r a t e
who shall be impleaded as public r e s p o n d e n t s in the
action and their permissible participation therein, as well
as the duties and liabilities of the private respondents. It
will be r e c a l l e d t h a t in a p p e a l by c e r t i o r a r i u n d e r
Rule 45, the Court of Appeals shall no longer be impleaded
as a respondent. The reason for the difference is t h a t
Rule 45 governs an appellate review by certiorari, hence
t h e r e can properly be no public respondent since t h e
dispute is actually between the contending parties in the
case, t h a t is, the appellant and the appellee in the Court
of Appeals who are respectively the petitioner and the
respondent in the Supreme Court.
On t h e o t h e r h a n d , Rule 65 involves an original
special civil action specifically directed against the person,
court, agency or party a quo which had committed not
only a mistake of judgment but an error of jurisdiction,
hence they should be made public respondents in t h a t
action b r o u g h t to nullify their invalid acts. It shall,
however, be the duty of the party litigant, whether in an
appeal under Rule 45 or in a special civil action in Rule
65, to defend in his behalf and the party whose
adjudication is assailed, as he is the one interested in
sustaining the correctness of the disposition or the validity
of the proceedings.
2. The party interested in sustaining the proceedings
in the lower court must be joined as a co-respondent and
813
he has the duty to defend in his own behalf and in behalf

of the court which rendered the questioned order. While
there is nothing in the Rules t h a t prohibits the presiding
judge of the court involved from filing his own answer
and defending his questioned order, the Supreme Court
has reminded judges of the lower courts to refrain from
doing so unless ordered by it (Turquenza vs. Hernando,
et al., G.R. No.51626, April 30, 1980). The judicial norm
or mode of conduct to be observed in trial and appellate
courts is now prescribed in the second paragraph of this
section.
3. The private respondent being an indispensable

party, his non-inclusion would render the petition for
certiorari defective (Amargo vs. CA, et al., L-31762,
Sept. 19, 1973). The judge in certiorari proceedings
is merely a nominal or formal party (Republic vs. CFI of
Lanao de Norte, et al, L-33949 and L-22986, Oct. 23,1973;
Taroma, et al. vs. Sayo, et al, L-37296, Oct. 30, 1975).
4. A person not a party to the proceedings in the trial
court or in t h e Court of Appeals cannot maintain an
action for certiorari in the Supreme Court to have the
judgment reviewed (Ramos vs. Lampa, 63 Phil. 216).
See also Tang, et al. vs. CA, et al (G.R. No. 117204,
Feb. 11, 2000).
Sec. 6. Order to comment. — If t h e p e t i t i o n is

sufficient in form a n d s u b s t a n c e to justify such
process, the court shall issue an order requiring the
respondent or respondents to comment on the
p e t i t i o n w i t h i n t e n (10) d a y s from r e c e i p t of a copy
thereof. Such order shall be served on the
respondents in such m a n n e r as the court may direct,
t o g e t h e r w i t h a copy of t h e p e t i t i o n a n d a n y a n n e x e s
thereto.
I n p e t i t i o n s for c e r t i o r a r i before t h e S u p r e m e
Court and the Court of Appeals, the provisions of
814
AND MANDAMUS
s e c t i o n 2, Rule 56, shall be observed. Before g i v i n g

due course thereto, the court may require the
r e s p o n d e n t s t o file t h e i r c o m m e n t t o , a n d n o t a
motion to dismiss, the petition. Thereafter, the
c o u r t m a y r e q u i r e t h e filing of a r e p l y a n d s u c h
other responsive or other pleadings as it may deem
n e c e s s a r y a n d proper. (6a)
NOTES
1. In t h e p e t i t i o n s u n d e r t h i s Rule filed in t h e
Regional Trial Court, no prior service of a copy thereof on
the respondent is required. The trial court, as provided
in this section, shall first determine whether the petition
is sufficient in form and substance to justify such process
and, if so, shall order the respondent to comment thereon.
Such order shall be served on said respondent together
with a copy of the petition and any annexes thereto. This
procedural aspect is similar to t h a t in petitions for relief
from judgments, orders and so forth (Sec. 4, Rule 38).
On the other hand, p u r s u a n t to the second paragraph
of t h i s section, in p e t i t i o n s for c e r t i o r a r i before t h e
Supreme Court and the Court of Appeals, there must be
proof of prior service of a copy of said petition on the
respondent, aside from the other requirements such as
the contents and certifications provided therefor. The
failure of the petitioner to comply with any of the fore-
going r e q u i r e m e n t s shall be sufficient ground for the
dismissal of the petitions (Sec. 2, Rule 56, in relation to
Sec. 3, Rule 46).
2. The respondent, is now required to file a comment,
instead of an answer, to the petition and this applies to
any court wherein the action is filed. If it is in the Re-
gional Trial Court, there shall be a hearing or submission
of memoranda, as provided in and subject to the provisions
of Sec. 8. In the Court of Appeals and the Supreme Court,
no hearing is required but the Court may require a reply
816
and such other and further pleadings as may be necessary

and proper. See, however, A.M. No. 99-2-04-SC laying
down the new procedure dispensing with rejoinder and
providing instead for s u b m i s s i o n of memoranda
(Appendix R).
If the petition is insufficient in form and substance,
the same may be forthwith dismissed without further
proceedings.
Sec. 7. Expediting proceedings; injunctive relief. —

The court in w h i c h t h e p e t i t i o n is filed may issue
orders e x p e d i t i n g the p r o c e e d i n g s , and it may also
grant a t e m p o r a r y r e s t r a i n i n g order or a writ of
preliminary injunction for the preservation of the
rights of the parties p e n d i n g such proceedings. The
petition shall not interrupt the course of the
principal case, unless a temporary restraining
order or a writ of preliminary injunction h a s been
i s s u e d , e n j o i n i n g t h e p u b l i c r e s p o n d e n t from
further p r o c e e d i n g w i t h t h e case.
The public r e s p o n d e n t shall proceed with the
principal c a s e w i t h i n t e n (10) days from the filing
of a p e t i t i o n for certiorari w i t h a higher court or
tribunal, a b s e n t a temporary r e s t r a i n i n g order or
a preliminary injunction, or upon its expiration.
Failure of the public respondent to proceed
w i t h t h e p r i n c i p a l c a s e may be a g r o u n d for an
administrative charge. (As amended in A.M. No. 07-
7-12-SC, effective Dec. 27, 2007)
Sec. 8. Proceedings after comment is filed. — After

t h e c o m m e n t or o t h e r p l e a d i n g s required by the
court are filed, or the time for the filing thereof has
expired, the court may hear the case or require the
parties to submit memoranda. If, after such hearing
or filing of memoranda or upon the expiration of
t h e p e r i o d for f i l i n g , t h e c o u r t f i n d s t h a t t h e
816
AND MANDAMUS
a l l e g a t i o n s of t h e p e t i t i o n are true, it shall r e n d e r

j u d g m e n t for s u c h relief t o w h i c h t h e p e t i t i o n e r i s
entitled.
H o w e v e r , t h e c o u r t may d i s m i s s t h e p e t i t i o n i f
it finds the same patently without merit or
p r o s e c u t e d m a n i f e s t l y for delay, or if t h e q u e s t i o n s
raised therein are too unsubstantial to require
c o n s i d e r a t i o n . I n s u c h e v e n t , t h e court may a w a r d
i n favor o f t h e r e s p o n d e n t t r e b l e c o s t s s o l i d a r i l y
a g a i n s t t h e p e t i t i o n e r and c o u n s e l , i n a d d i t i o n t o
subjecting counsel to administrative sanctions
u n d e r R u l e s 139 a n d 139-B of t h e R u l e s of Court.
The Court m a y i m p o s e motu proprio, based on
res ipsa loquitur, o t h e r d i s c i p l i n a r y s a n c t i o n s or
m e a s u r e on e r r i n g l a w y e r s for p a t e n t l y dilatory and
u n m e r i t o r i o u s p e t i t i o n s for certiorari. (As amended
in A.M. No. 07-7-12-SC, effective Dec. 27, 2007)
NOTES
1. Sec. 7 now provides for the issuance of a tempo-

r a r y r e s t r a i n i n g o r d e r , a n d not only for a w r i t of
preliminary injunction, but such order shall be subject to
the rules on the grounds and duration thereof.
2. Sec. 6 contemplates the outright dismissal of the
petition which is insufficient in form and substance, in
line with the last paragraph of Sec. 3, Rule 46. Sec. 8, on
the other hand, governs after the comment is filed and
authorizes the dismissal of the petition if found to be
patently without merit, dilatory or too unsubstantial to
merit consideration.
Sec. 9. Service and enforcement of order or judgment.

— A c e r t i f i e d c o p y of t h e j u d g m e n t r e n d e r e d in
a c c o r d a n c e w i t h the last p r e c e d i n g section shall be
served upon the court, quasi-judicial agency,
817
tribunal, corporation, board, officer or person

c o n c e r n e d in s u c h m a n n e r as t h e court may direct,
and disobedience thereto shall be punished as
contempt. An e x e c u t i o n may i s s u e for any damages
or costs a w a r d e d in a c c o r d a n c e with section 1 of
Rule 39. (9a)
NOTE
1. Where the higher court finds t h a t the lower court

was in error, ordinarily the case is remanded to the lower
court for further appropriate proceedings. However, it
may render judgment on the merits without remand of
the case where the facts revealed by the pleadings clearly
show that the petitioner is entitled to the relief prayed for
(see Lina us. Purisima, L-39380, April 14, 1978). Thus,
in a certiorari case where the lower court rendered a
default judgment for an amount much higher than that
authorized by the Rules, the Supreme Court decided the
case on the merits, instead of remanding the same, since
certiorari is also equitable in character (Ledesma Ouerseas
Shipping Corp. us. Auelino, L-47698, April 28, 1978).
818
RULE 66
QUO WARRANTO
Section 1. Action by Government against

individuals. — An a c t i o n for t h e u s u r p a t i o n of a
public office, position or franchise may be com-
m e n c e d by a verified p e t i t i o n brought in t h e n a m e
of t h e R e p u b l i c of t h e P h i l i p p i n e s against:
(a) A p e r s o n w h o u s u r p s , i n t r u d e s into, or u n -
lawfully h o l d s or e x e r c i s e s a p u b l i c office, p o s i t i o n
or f r a n c h i s e ;
(b) A p u b l i c officer w h o d o e s or suffers an act
w h i c h , by p r o v i s i o n of law, c o n s t i t u t e s a g r o u n d for
the forfeiture of h i s office; or
(c) An a s s o c i a t i o n w h i c h a c t s as a c o r p o r a t i o n
within the Philippines without being legally
i n c o r p o r a t e d or w i t h o u t lawful a u t h o r i t y so to act.
(la)
NOTES
1. This amended Rule is now limited to quo warranto

proceedings involving a public office, position or franchise.
Par. (c) of Sec. 1 refers to an association which exercises
corporate functions or powers although it has not been
legally incorporated. In the case of a legally incorporated
entity, the quo warranto action is now governed by the
Corporation Code. For that reason, the former Sec. 2 of
this Rule, which provided for quo w a r r a n t o against a
c o r p o r a t i o n , h a s not been r e p r o d u c e d h e r e , and all
references to proceedings in quo w a r r a n t o involving
corporations as provided in the former Rule have been
eliminated.
2. Quo warranto is the remedy to try disputes with
respect to the title to a public office. Where, however,
819
there is no dispute as to who has the title to the public

office b u t t h e adverse p a r t y , without lawful ground,
prevents the rightful occupant from assuming the office,
mandamus is the remedy to oust the usurper (Lota vs.
CA, et al., L-14803, June 30, 1961).
3. Quo warranto is distinguished from an election
contest, thus:
a. The basis for quo warranto is t h a t the occupant is
d i s q u a l i f i e d from h o l d i n g t h e office by r e a s o n of
ineligibility or disloyalty. An election contest challenges
the right of a person to hold office on the ground of
irregularities in the conduct of the elections for said office
(Falcotelo vs. Gali, L-24190, Jan. 8, 1968).
b. If the quo w a r r a n t o proceeding succeeds, the
respondent will be ousted but the petitioner will not assume
the office. In election contests, the successful protestant
will assume the office if he had obtained a plurality of the
valid votes.
4. The distinctions between quo warranto actions in
elective and appointive offices are as follows:
a. In quo w a r r a n t o proceedings affecting elective
offices, the issue is the eligibility of the respondent. In
those involving appointive offices, the issue is the validity
of the appointment.
b. Where an elective office is involved, the occupant
who was declared ineligible or disloyal will be unseated
but the petitioner will not be declared the rightful occu-
pant of the office. In appointive offices, the court will
oust the person illegally appointed and will order the
seating of the person who was legally appointed and
entitled to the office (Nuval vs. Guray, 52 Phil. 653;
Gaerlan vs. Catubig, L-23964, June 1, 1966).
5. Quo warranto, as a rule, is commenced by the
Government as the proper party plaintiff. The exception
820
R U L E 66 QUO WARRANTO S E C S . 2-4
is when a person claims to be entitled to the public office

allegedly usurped by another in which case he can bring
the action in his own name (Sec. 5).
By analogy with the provisions of Sec. 5, it has been
held t h a t a public utility may bring a quo warranto action
against another public utility which has usurped the rights
of the former granted under a franchise (Cui vs. Cui, 60
Phil. 57).
S e c . 2. When Solicitor General or public prosecutor

must commence action. — The Solicitor General or a
public prosecutor, when directed by the President
of the Philippines, or when upon complaint or
otherwise he has good reason to believe that any
case specified in the preceding section can be
e s t a b l i s h e d by proof, m u s t c o m m e n c e s u c h a c t i o n .
(3a)
Sec. 3. When Solicitor General or public prosecutor

may commence action with permission of court. — The
S o l i c i t o r G e n e r a l or a public p r o s e c u t o r may, w i t h
t h e p e r m i s s i o n of t h e court in w h i c h t h e a c t i o n is
to be commenced, bring such an action at the
r e q u e s t a n d u p o n t h e r e l a t i o n o f a n o t h e r person;
but in s u c h c a s e t h e officer b r i n g i n g it may first
r e q u i r e an i n d e m n i t y for t h e e x p e n s e s and c o s t s of
the action in an amount approved by and to be
deposited in the court by the person at whose
request and upon whose relation the same is
brought. (4a)
Sec. 4 . When hearing had on application for

permission to commence action. — Upon application for
p e r m i s s i o n t o c o m m e n c e such action i n a c c o r d a n c e
with the next preceding section, the court shall
d i r e c t t h a t n o t i c e be g i v e n to the r e s p o n d e n t so that
he may be heard in opposition thereto; and if
821
permission is granted, t h e court shall i s s u e an order

to t h a t effect, c o p i e s of w h i c h shall be served on all
i n t e r e s t e d parties, and t h e p e t i t i o n shall t h e n be
filed w i t h i n t h e period ordered by t h e court. (5a)
Sec. 5. When an individual may commence such an

action. — A person c l a i m i n g to be entitled to a public
office or p o s i t i o n u s u r p e d or u n l a w f u l l y held or
e x e r c i s e d by a n o t h e r may bring an action therefor
in his o w n name. (6)
NOTES
1. The Solicitor General or the public prosecutor may

commence a quo warranto action (a) when directed by the
President, (b) when he has good reason to believe that he
can establish a case under the grounds in Secs. 1 and 2,
and (c) at the request and upon the relation of another
person (ex relatione) but, in this case, leave of court must
first be obtained, and he may also require an indemnity
bond from the relator.
2. The person instituting quo warranto proceedings
in his own behalf, under Sec. 5, does not have to secure
the intervention of the Solicitor General or the fiscal, nor
does he have to obtain prior leave of court (Cui vs. Cui,
supra). However, such petitioner in the quo warranto
proceeding must aver and be able to show t h a t he is
entitled to the office in dispute. Without such averment
or evidence of such right, the action may be dismissed at
any stage (Garcia vs. Perez, L-28184, Sept. 11, 1980).
Sec. 6. Parties and contents of petition against

usurpation. — When t h e action is against a person
for usurping a public office, position or franchise,
the petition shall set forth the name of the person
who claims to be entitled thereto, if any, with an
a v e r m e n t o f h i s r i g h t t o t h e s a m e a n d t h a t the
822
RULE 66 QUO WARRANTO S E C S . 7, 8-9
r e s p o n d e n t is unlawfully in p o s s e s s i o n thereof.
All p e r s o n s w h o c l a i m t o b e e n t i t l e d t o t h e p u b l i c
office, p o s i t i o n or f r a n c h i s e may be m a d e p a r t i e s ,
a n d t h e i r r e s p e c t i v e r i g h t s , t o s u c h p u b l i c office,
position or franchise determined, in the same
a c t i o n . (7a)
Sec. 7. Venue. — A n a c t i o n u n d e r t h e p r e c e d i n g
six s e c t i o n s c a n b e b r o u g h t o n l y i n t h e S u p r e m e
Court, t h e Court of Appeals, or in the Regional
Trial Court e x e r c i s i n g j u r i s d i c t i o n o v e r t h e terri-
torial area where the respondent or any of the
r e s p o n d e n t s r e s i d e s , but w h e n t h e Solicitor General
c o m m e n c e s the action, it may be brought in a
R e g i o n a l Trial Court in t h e City of Manila, in t h e
Court of A p p e a l s , or in t h e S u p r e m e Court. (8a)
NOTE
1. Sec. 7 has been amended to include the Court

of Appeals, consonant with the provision of Sec. 9, B.P. Blg. 129 granting it original jurisdiction over quo warranto
actions, concurrently with the Supreme Court and the
Regional Trial Court.
Sec. 8. Period for pleadings and proceedings may

be reduced; action given precedence. — The c o u r t may
r e d u c e t h e p e r i o d p r o v i d e d b y t h e s e R u l e s for
filing p l e a d i n g s a n d for all other p r o c e e d i n g s in t h e
action in order to secure the most expeditious
determination of the matters involved therein
consistent with the rights of the parties. Such
a c t i o n m a y be g i v e n p r e c e d e n c e over any o t h e r civil
m a t t e r p e n d i n g in t h e court. (9a)
Sec. 9. Judgment where usurpation found. —

When t h e r e s p o n d e n t is found guilty of u s u r p i n g ,
i n t r u d i n g into, or unlawfully h o l d i n g or e x e r c i s i n g
823
a public office, position or franchise, judgment shall

be r e n d e r e d t h a t s u c h r e s p o n d e n t be ousted and
a l t o g e t h e r e x c l u d e d therefrom, and that the
petitioner or relator, as t h e c a s e may be, recover
his costs. S u c h further j u d g m e n t may be rendered
d e t e r m i n i n g t h e r e s p e c t i v e r i g h t s i n and t o the
public office, positions or franchise of all the parties
to the action as justice requires. (10a)
Sec. 10. Rights of persons adjudged entitled to

public office; delivery of books and papers; damages. — If
judgment be rendered in favor of the person averred
in the complaint to be entitled to the public office
he may, after t a k i n g the oath of office and executing
any official bond required by law, take upon himself
the e x e c u t i o n of t h e office, and may immediately
thereafter d e m a n d of the r e s p o n d e n t all the books
and papers in t h e respondent's custody or control
a p p e r t a i n i n g to t h e office to w h i c h the j u d g m e n t
relates. If t h e r e s p o n d e n t r e f u s e s or n e g l e c t s to
deliver any book or paper pursuant to such demand,
h e m a y b e p u n i s h e d for c o n t e m p t a s h a v i n g
disobeyed a lawful order of the court. The person
adjudged entitled to the office may also bring action
against the respondent to recover the damages
sustained by such person by reason of the
usurpation. (15a)
Sec. 11. Limitations. — N o t h i n g c o n t a i n e d in

this Rule shall be construed to authorize an action
against a public officer or employee for his ouster
from office u n l e s s t h e same be commenced within
one (1) year after the cause of such ouster, or the
right of the petitioner to hold such office or position,
arose; nor to a u t h o r i z e an action for d a m a g e s in
accordance with the provisions of the next
preceding section u n l e s s the same be commenced
824
RULE 66 QUO WARRANTO S E C . 12
w i t h i n o n e (1) y e a r after t h e e n t r y o f t h e j u d g m e n t
e s t a b l i s h i n g t h e p e t i t i o n e r ' s r i g h t t o t h e office i n
q u e s t i o n . (16a)
Sec. 12. Judgment for costs. — In an a c t i o n

brought in accordance with the provisions of this
R u l e , t h e c o u r t m a y r e n d e r j u d g m e n t for c o s t s
against either the petitioner, the relator, or the
respondent, or the person or persons claiming to
be a c o r p o r a t i o n , or m a y a p p o r t i o n t h e c o s t s , as
j u s t i c e r e q u i r e s . (17a)
NOTES
1. The periods within which the quo warranto action

should be brought are conditions precedent to the
existence of a cause of action. Consequently, the action
cannot prosper if it was brought beyond said periods even
if such a defense was not raised by the defendant in the
lower court (Abeto vs. Rodas, 82 Phil. 59; cf. Unabia vs.
City Mayor, et al., 99 Phil. 252, applying the same rule in
an action for reinstatement).
2. In quo warranto actions over a public office, the

filing of the complaint suspends the running of the one-
year period. Should the complaint be dismissed without
prejudice, the one-year period s t a r t s to run again, and
the plaintiff has the balance of the period within which to
re-institute the action (Mendiola vs. Tancino, et al., 109
Phil. 317).
3. The one-year period, however, is not interrupted
by the prosecution of any administrative remedy as, in
quo w a r r a n t o p r o c e e d i n g s , no one is c o m p e l l e d to
resort to administrative remedies since public interest
requires that the right to public office should be determined
as speedily as possible (Galano, et al. vs. Roxas, L-31241,
Sept. 12, 1975; Sison vs. Pangramuyen, et al., L-40295,
825
July 31, 1978; Garcia vs. Perez, supra; Palma Fernandez

vs. De la Paz, et al., G.R. No. 79846, April 15, 1988).
4. In the exceptional case of Cristobal vs. Melchor,
et al. (L-43203, July 29, 1977), the one-year period was
not applied, on equitable considerations, a g a i n s t an
employee who failed to seek relief by quo warranto within
the period. It was proved t h a t his failure to join his co-
employees as a plaintiff in the quo warranto action was
due to the fact t h a t not only did he continuously press
for his reinstatement but he was actually promised such
reinstatement. In fact, some of his co-employees who
were plaintiffs in the quo warranto action were reinstated
during the pendency of the suit and without prejudice
to the results thereof. More importantly, he could be
expected to rely on such r e s u l t s as he was similarly
circumstanced as the plaintiffs therein.
5. It was formerly held that, under the state of the

law in 1983, in quo warranto proceedings against elective
officials on the ground of ineligibility or disloyalty, the
Commission on Elections had exclusive jurisdiction where
the defendant was a member of the Batasang Pambansa
or was a provincial or city official (Sec. 189, 1978 Election
Code) or was a municipal official (Gabatan vs. Commission
on Elections, G.R. No. 58113, May 2, 1983). Where the
defendant was a barangay official, jurisdiction was vested
in the proper inferior court (Regatcho vs. Cleto, et al.,
G.R. No. 61946, Dec. 21, 1983, citing Sec. 191, 1978
Election Code; Sec. 20, B.P. 222, Barangay Election Law;
and Sec. 8, R.A. 3590, Revised Barangay Charter).
However, under the Omnibus Election Code (B.P. 881,
effective Dec. 3, 1985), the foregoing jurisdictional rules
have been modified in the sense that a quo warranto action
against a municipal official is now within the jurisdiction
of the Regional Trial Court, while one against a barangay
official r e m a i n s w i t h t h e inferior c o u r t s , w i t h the
Commission on Elections retaining its exclusive jurisdiction
826
RULE 66 QUO WARRANTO S E C . 12
in quo warranto actions against the other local public

officials above stated (Secs. 253-254).
6. Quo warranto to contest the election of a public
officer differs from that provided for in this Rule in that
the former is an electoral proceeding under the Omnibus
Election Code for the exclusive purpose of impugning the
election of a public officer on the ground of ineligibility
for or disqualification to hold the office. Quo warranto
under this Rule, on the other hand, is a prerogative writ
by which the Government can call upon any person to
show by what title he holds a public office or exercises a
public franchise (Newsman vs. U.S., 238 U.S. 537, 56
L. Ed. 573). Under the Omnibus Election Code, a petition
for quo warranto must be filed within 10 days from the
proclamation of the candidate, whereas quo warranto
under this Rule presupposes that the respondent is already
actually holding the office. Furthermore, the petition
under the said Code may be filed by any registered
candidate for the same office and who, even if the petition
prospers, would not be entitled to that office; whereas, in
quo warranto under this Rule, the petitioner must be the
person entitled to the office and who would assume the
same if his action succeeds. In fine, this Rule refers to
quo warranto in general, while the election law governs
quo warranto against specified elective officials (Falcotelo,
et al. vs. Gali, et al, L-24190, Jan. 8, 1968).
827
RULE 67
EXPROPRIATION
Section 1. The complaint. — The right of eminent

domain shall be e x e r c i s e d by the filing of a verified
complaint w h i c h shall state w i t h certainty the right
and p u r p o s e of expropriation, describe the real or
personal property s o u g h t to be expropriated, and
join as d e f e n d a n t s all p e r s o n s o w n i n g or claiming
to own, or o c c u p y i n g , any part t h e r e o f or interest
therein, s h o w i n g , so far as practicable, the separate
i n t e r e s t o f e a c h d e f e n d a n t . I f t h e t i t l e t o any
property s o u g h t to be expropriated appears to be
in the Republic of the Philippines, although
o c c u p i e d by p r i v a t e i n d i v i d u a l s , or if the title is
o t h e r w i s e o b s c u r e or doubtful so t h a t the plaintiff
c a n n o t with accuracy or c e r t a i n t y specify w h o are
the real o w n e r s , a v e r m e n t to t h a t effect shall be
made in the complaint, ( l a )
NOTES
1. Eminent domain, which is properly a concept of

political or constitutional law, is the right of the State to
acquire private property for public use upon the payment
of j u s t compensation. T h a t right extends to private
property partly or entirely personal and the process of
acquisition is substantially the same (see Act 204). The
requirement of due process calls for a rule of procedure to
be observed in the exercise of the right of eminent domain
which is more familiarly known in our jurisdiction as
expropriation but, in the American jurisdiction, is often
referred to as condemnation.
Since our Rule on the matter is of American origin,
the term "condemnation" has heretofore also been used.
It was felt, however, that expropriation should be the more
828
RULE 67 EXPROPRIATION SEC. 1
a p p r o p r i a t e t e r m for t h i s p r o c e d u r a l rule since con-

d e m n a t i o n is also used for civil a n d commercial law
purposes, aside from its having a negative connotation.
Our choice of the present term is more specific t h a n some
concepts of "eminent domain proceedings" in American law.
At any rate, in Louisiana and in most of the states of
the American union, "expropriation" is used as the taking
under eminent domain. It has been expressly recognized
t h a t a meaning has been attached to the term
" e x p r o p r i a t i o n , " i m p o r t e d from i t s u s e i n f o r e i g n
j u r i s p r u d e n c e , which m a k e s it synonymous with t h e
e x e r c i s e of t h e p o w e r of e m i n e n t d o m a i n , i.e., t h e
compulsory taking from a person, on compensation made,
of his private property such as for the use of a railroad,
canal or other public works (Brownsville vs. Pavazas, 2
Woods 293, Fed. Cos. No. 2,043).
2. Rule 67 primarily governs the exercise of the right

of e m i n e n t d o m a i n by t h e S t a t e a c t i n g t h r o u g h t h e
national government. Expropriation by local government
units has heretofore also been authorized by different
laws, together with other political subdivisions created
and so empowered by law. Presently, however, such pro-
visions on this power of local political subdivisions have
been consolidated and embodied in the Local Government
Code of 1991 (R.A. 7160), and the pertinent provisions
thereof are quoted and briefly discussed in the notes at
the end of this Rule.
3. Sec. 1 of this Rule requires t h a t the complaint

should allege both t h e r i g h t and t h e purpose of t h e
e x p r o p r i a t i o n . W h e r e t h e r i g h t of t h e p l a i n t i f f to
expropriate is conferred by law, the complaint does not
have to state with certainty the right of expropriation
(MRR Co. vs. Mitchel, 50 Phil. 832).
4. It is t h e a c t u a l filing of t h e c o m p l a i n t for
expropriation which binds the land, and not a mere notice
829
of t h e i n t e n t to e x p r o p r i a t e (Republic vs. Baylosis,

96 Phil. 461). However, the owner of the land may still
dispose of said property, despite the filing of the action, as
the grantee would merely be substituted in his place and
holds the land subject to the results of the action (Tuason,
Jr. vs. De Asis, 107 Phil. 131).
5. Proceedings for the expropriation or condemnation
of parcels of land situated in different provinces may be
brought in any of said provinces. But the defendant land
owners in each province may require a separate action
to be commenced against them in their respective provinces
to avoid inconvenience and e x p e n s e (MRR Co. vs.
Attorney-General, 20 Phil. 523).
Sec. 2. Entry of plaintiff upon depositing value with

authorized government depository. — Upon the filing of
the c o m p l a i n t or at any time thereafter and after
due notice to t h e defendant, the plaintiff shall have
the right to t a k e or e n t e r u p o n t h e p o s s e s s i o n of
the real property i n v o l v e d if he d e p o s i t s with t h e
authorized government depository an amount
e q u i v a l e n t to t h e a s s e s s e d value of the property for
purposes of t a x a t i o n to be held by such bank subject
to the orders of the court. S u c h d e p o s i t shall be in
money, u n l e s s in lieu t h e r e o f t h e court authorizes
the d e p o s i t of a certificate of deposit of a govern-
ment bank of the Republic of the Philippines
payable on d e m a n d to the authorized government
depository.
If personal property is involved, its value shall
be provisionally a s c e r t a i n e d and the a m o u n t to be
deposited shall be promptly fixed by the court.
After such deposit is made the court shall order
the sheriff or other proper officer to forthwith place
the plaintiff in p o s s e s s i o n of t h e property involved
and promptly submit a report thereof to the court
with service of copies to the parties. (2a)
830
NOTES
1. Under P.D. 42, w h a t was required to be deposited

was an amount equivalent to the assessed value of the
land and the deposit should be made with the Philippine
National Bank or any of its branches or agencies (see
San Diego vs. Valdellon, L-45673, Nov. 22, 1977).
However, u n d e r P.D. 1533, effective J u n e 1, 1978, the
deposit required was changed to ten per cent (10%) of the
amount of compensation as provided therein (see Note 2
under Sec. 9 of this Rule). This section now provides for
the amount of the preliminary deposit, i.e., the assessed
value of the property for purposes of taxation. Also, mere
notice to the landowner, without prior hearing, suffices
for immediate entry on the land (Haguisan vs. Emilia,
et al., L-40108, Aug. 31, 1984).
2. The p r e l i m i n a r y deposit under this section

constitutes advance payment in the event the
e x p r o p r i a t i o n proceeds, and s t a n d s as i n d e m n i t y for
damages should the proceedings not succeed (Visayan
Refining Co. vs. Camus, 40 Phil. 550).
3. The preliminary deposit is only necessary if the
plaintiff desires entry on the land upon its institution of
the action; otherwise, it could always wait until the order
of expropriation is issued before it enters upon the land.
4. Owners of expropriated lands are entitled to legal
interest on the compensation eventually adjudged from
the date the condemnor takes possession of the land until
the full compensation is paid to them or deposited in court
(Digran vs. Auditor General, L 21593, April 29, 1966;
Valdehueza vs. Republic, L 31032, May 19, 1966; Republic
vs. Tayengco, L-23766, April 29, 1967).
5. Some modifications have been made in this section
to a d d r e s s contemporary changes and practice. For
instance, this section speaks of such authorized
831
government depository at the time, and no longer of the

Philippine National Bank which is now essentially a
private banking institution.
6. Once the required deposit u n d e r t h i s section
has been duly made, the expropriator is entitled to a
w r i t of possession over t h e p r o p e r t y as a m a t t e r of
right, and the issuance of t h a t writ becomes ministerial
on the p a r t of the trial court (Biglang-awa, et al. vs.
Bacalla, etc., et al., G.R. Nos. 139927-36, Nov. 22, 2000).
7. On N o v e m b e r 7, 2 0 0 0 , C o n g r e s s e n a c t e d
R.A. 8974, a special law to facilitate the acquisition of right-
of-way, s i t e or l o c a t i o n for n a t i o n a l g o v e r n m e n t
infrastructure projects. These projects refer to all national
government infrastructure, engineering works and service
contracts, including projects undertaken by government-
owned and controlled corporations, all projects under
R.A. 6957, as a m e n d e d ( t h e B u i l d - O p e r a t e - a n d -
Transfer Law), and other related and necessary activities
regardless of the source of funding. Discrete guidelines
for expropriation requirements and procedure under this
law are provided, with rules and regulations for their
implementation as prepared by a committee contemplated
therein (Appendix U).
8. In Republic, et al. vs. Gingoyon, etc., et al.
(G.R. No. 166429, Dec. 19, 2005), t h e G o v e r n m e n t
q u e s t i o n e d t h e a p p l i c a b i l i t y of R.A. 8974 in t h e
expropriation proceedings it had instituted over the airport
facility called NAIA 3 (Ninoy Aquino International Airport
Passenger Terminal 3). This building was constructed by
d e f e n d a n t PIATCO ( P h i l i p p i n e I n t e r n a t i o n a l Air
Terminals Co., Inc.) in the NAIA complex as a national
infrastructure project under R.A. 6957 (Build-Operate-
and-Transfer Law), as amended.
832
It was the Government's contention t h a t the

expropriation action should be governed by Rule 67, and
not R.A. 8974 as was later held and followed by the judge
presiding over t h e expropriation court. On review by
certiorari, the Supreme Court upheld the Regional Trial
Court's position that, in this particular case, R.A. 8974
had superseded Rule 67.
P r i m a r i l y , t h e S u p r e m e Court noted two crucial

differences in the respective procedures involved under
t h e s t a t u t e a n d t h e R u l e . U n d e r R.A. 8 9 7 4 , t h e
G o v e r n m e n t is required to make an immediate direct
p a y m e n t to t h e property owner upon t h e filing of the
complaint to be entitled to a writ of possession; whereas in
Rule 67, t h e Government h a s only to make an initial
deposit with an authorized government depositary.
F u r t h e r , R.A. 8974 provides, as a s t a n d a r d for initial
compensation, the market value of the property as stated
in the tax declaration or the relevant zonal valuation,
w h e r e a s Rule 67 prescribes t h a t the initial deposit be
merely equivalent to the assessed value of the property
for purposes of taxation.
As borne out by the deliberations in Congress, the
plain intent of R.A. 8974 is to supersede the system of
deposit u n d e r Rule 67 with the scheme of "immediate
p a y m e n t " in cases involving national government
infrastructure projects. The appropriate standard of just
compensation is a substantive m a t t e r well within the
province of the legislature to fix. Such payment is based
on t h e zonal v a l u a t i o n of t h e land, t h e value of t h e
improvements under the replacement cost method, or if
no such valuation is immediately available, the proffered
value of the property. Nonetheless, it recognizes the
continued applicability of Rule 67 on procedural aspects.
The Government theorizes that the NAIA 3 facilities
cannot be deemed as the "right of way," "site or location"
833
of a national government infrastructure project within the

coverage of R.A. 8974. The Court explained that the term
"site" does not of itself necessarily mean a piece of land
fixed by definite boundaries. It contemplates land,
buildings, roads and all kinds of constructions adhered to
the soil. The law classifies the NAIA 3 facilities as real
properties just like the soil on which they stand.
9. The holdings in Gingoyon were replicated and

r a m i f i e d in Republic, etc. vs. Holy Trinity Realty
Developement Corp. (G.R. No. 172410, April 14, 2008).
The Court reiterated t h a t the expropriation procedure
under R.A. 8974 specifically governs expropriation for
n a t i o n a l g o v e r n m e n t i n f r a s t r u c t u r e projects, while
Sec. 19 of the Local Government Code governs the exercise
of the power of eminent domain by local government units
through an enabling ordinance. Also, if expropriation in
engaged in by the National Government for purposes other
than national infrastructure projects, the assessed value
s t a n d a r d and the deposit mode prescribed in Rule 67
continues to apply.
If the amount deposited under either procedure bears
interest, the landowner is entitled to the same, since it
constitutes the civil fruits or accessions of the principal
object, t h a t is, the deposit in favor of the landowner in
the expropriation account. Where the amount deposited
pertains to separate properties of different landowner
which were expropriated in the same proceeding, then
each landowner is entitled to the proportionate interest
on the deposited amount pertaining to his own property
and its commensurate value.
Sec. 3. Defenses and objections. — If a defendant

h a s no o b j e c t i o n or d e f e n s e to the a c t i o n or the
taking of his property, he may file and serve a notice
of a p p e a r a n c e and a manifestation to that effect,
specifically d e s i g n a t i n g or identifying the property
834
in which he claims to be interested, within the time

stated in the summons. Thereafter, he shall be
e n t i t l e d t o n o t i c e o f all p r o c e e d i n g s a f f e c t i n g t h e
same.
If a d e f e n d a n t h a s a n y objection to t h e filing or
the allegations in the complaint, or any objection
o r d e f e n s e t o t h e t a k i n g o f h i s property, h e s h a l l
serve his answer within the time stated in the
s u m m o n s . The a n s w e r shall specifically d e s i g n a t e
or identify the property in which he claims to have
an interest, state the nature and extent of the
i n t e r e s t c l a i m e d , a n d a d d u c e all h i s o b j e c t i o n s a n d
defenses to the taking of his property. No
c o u n t e r c l a i m , c r o s s - c l a i m o r third-party c o m p l a i n t
s h a l l be a l l e g e d or a l l o w e d in t h e a n s w e r or a n y
subsequent pleading.
A d e f e n d a n t w a i v e s all d e f e n s e s and o b j e c t i o n s
not so alleged but the court, in the interest of
justice, may permit amendments to the answer to
be m a d e not later t h a n t e n (10) d a y s from t h e filing
thereof. H o w e v e r , at t h e trial of t h e i s s u e of j u s t
c o m p e n s a t i o n , w h e t h e r or not a defendant has
p r e v i o u s l y a p p e a r e d o r a n s w e r e d , h e may p r e s e n t
evidence as to the amount of the compensation to
be paid for h i s property, and he may s h a r e in t h e
d i s t r i b u t i o n of t h e award, (n)
NOTES
1. This amended section is patterned mainly after

Rule 71A (e) of the U.S. Federal Rules of Civil Procedure
(see 28 U.S.C.A. 575).
2. The former procedure, which was likewise taken
from the practice in some American states, required a
motion to dismiss, in lieu of an answer, as the prescribed
responsive pleading to a complaint for expropriation.
835
This was sometimes a bit confusing as the previous

holdings under t h a t former provision also allowed the
filing of another motion to dismiss, as that is understood
in Rule 16, to raise additionally the preliminary objections
authorized by that Rule.
The answer which is now required by this new section
also observes t h e omnibus motion rule, b u t permits
amendments to be made thereto within 10 days from its
filing. Furthermore, failure to file t h a t answer does not
produce all the disastrous consequences of default in
ordinary civil actions since the defendant may nonetheless
appear at the trial to p r e s e n t evidence as to the just
compensation he claims and, thereafter, share in the
judicial award.
In the interest of expediency, however, no counter-
claim, cross-claim or third-party complaint is allowed to
be incorporated in the answer or to be filed in a subsequent
pleading in the case.
Sec. 4. Order of expropriation. — If the objections

to and the d e f e n s e s a g a i n s t t h e right of the plaintiff
to expropriate the property are overruled or w h e n
no party appears to defend as required by this Rule,
the court may issue an order of expropriation
declaring that the plaintiff h a s a lawful right to take
t h e p r o p e r t y s o u g h t t o b e e x p r o p r i a t e d , for t h e
public use or purpose described in the complaint,
upon the payment of just compensation to be
determined as of the date of the taking of the
property or the filing of the complaint, w h i c h e v e r
came first.
A final order s u s t a i n i n g the right to expropriate
the property may be appealed by any party
a g g r i e v e d t h e r e b y . S u c h a p p e a l , h o w e v e r , shall
not p r e v e n t the c o u r t from d e t e r m i n i n g the just
c o m p e n s a t i o n to be paid.
836
After the rendition of such an order, the

plaintiff shall not be permitted to dismiss or
discontinue the proceeding except on such terms
as the court deems just and equitable. (4a)
NOTES
1. The order of expropriation forecloses any further

objections to the right to expropriate, including the public
purpose of the same. The only substantial issue thereafter
is the m a t t e r of just compensation.
2. Being determinative of the question of the right
to expropriate, such order of condemnation is a final order
on t h a t issue and is appealable (see Uriarte us. Teodoro,
86 Phil. 196).
3. The special civil action of expropriation is, as a
consequence of t h e foregoing provisions of Sec. 4, one
wherein multiple appeals are permitted. An appeal may
b e t a k e n from t h e a f o r e s a i d o r d e r a u t h o r i z i n g
expropriation and, thereafter, another appeal lies against
the judgment on the just compensation to be paid (see
Secs. 10 and 11). The significance of this fact is that, just
as in special proceedings, the reglementary period to appeal
shall be 30 days and a record on appeal shall be required
for each of the permissible appeals.
Sec. 5. Ascertainment of compensation. — U p o n

the rendition of the order of expropriation, the
c o u r t s h a l l a p p o i n t n o t m o r e t h a n t h r e e (3)
competent and disinterested persons as com-
m i s s i o n e r s t o a s c e r t a i n and report t o t h e c o u r t t h e
j u s t c o m p e n s a t i o n for t h e p r o p e r t y s o u g h t to be
t a k e n . The o r d e r of a p p o i n t m e n t shall d e s i g n a t e
t h e t i m e and place of t h e first s e s s i o n of t h e h e a r i n g
to be held by the c o m m i s s i o n e r s and specify the time
w i t h i n w h i c h t h e i r report should be filed w i t h t h e
court.
837
Copies of the order shall be served on the

parties. Objections to t h e a p p o i n t m e n t of any of
t h e c o m m i s s i o n e r s s h a l l b e filed w i t h t h e court
within t e n (10) days from service, and t h e same shall
be r e s o l v e d w i t h i n t h i r t y (30) d a y s after all the
c o m m i s s i o n e r s s h a l l h a v e r e c e i v e d c o p i e s o f the
objections. (6a)
NOTES
1. As a general proposition, the Supreme Court has

defined just compensation as the full and fair equivalent
of the property taken from its owner by the expropriator.
The measure is not the taker's gain but the owner's loss.
The word "just" is used to convey t h e idea t h a t the
equivalent to be rendered for the property to be taken
shall be real, substantial, full and ample.
The just compensation for the condemned property is
generally the market value. Such amount is not limited
to the assessed value of the property or to the schedule of
m a r k e t v a l u e s d e t e r m i n e d by t h e provincial or city
appraisal committee. However, these values may serve
as factors to be considered in the judicial valuation of the
property (National Power Corp. vs. Manubay Agro-
Industrial Dev. Corp., G.R. No. 150936, Aug. 18, 2004,
citing cases;.
2. The appointment of commissioners is one of the
steps involved in expropriation proceedings. Another
instance where the a p p o i n t m e n t of commissioners is
required is in judicial partition where the parties cannot
agree (Sec. 3, Rule 69). This is different from trial by
commissioners under Rule 32 wherein the appointment of
commissioners is discretionary on the court and the power
is exercised only under the circumstances enumerated
therein.
838
RULE 67 EXPROPRIATION S E C S . 6-
Sec. 6. Proceedings by commissioners. — B e f o r e

entering upon the performance of their duties,
the c o m m i s s i o n e r s shall take and subscribe an
o a t h t h a t t h e y w i l l faithfully p e r f o r m t h e i r d u t i e s
a s c o m m i s s i o n e r s , w h i c h o a t h s h a l l b e filed i n c o u r t
with the other proceedings in the case. Evidence
may be introduced by either party before the
c o m m i s s i o n e r s w h o are a u t h o r i z e d t o a d m i n i s t e r
o a t h s o n h e a r i n g s before t h e m , a n d t h e c o m m i s -
sioners shall, unless the parties consent to the
c o n t r a r y , after d u e n o t i c e t o t h e p a r t i e s t o a t t e n d ,
view and examine the property sought to be
expropriated and its surroundings, and may
m e a s u r e t h e s a m e , after w h i c h e i t h e r party may, b y
himself or counsel, argue the case. The com-
missioners shall assess the consequential damages
t o t h e p r o p e r t y n o t t a k e n a n d d e d u c t from s u c h
consequential damages the consequential benefits
to be d e r i v e d by t h e o w n e r from t h e p u b l i c u s e or
p u r p o s e o f t h e p r o p e r t y t a k e n , t h e o p e r a t i o n o f its
f r a n c h i s e by t h e c o r p o r a t i o n or t h e c a r r y i n g on of
the business of the corporation or person taking
t h e property. B u t i n n o c a s e shall t h e c o n s e q u e n t i a l
benefits a s s e s s e d e x c e e d t h e c o n s e q u e n t i a l d a m a g e s
assessed, or the owner be deprived of the actual
v a l u e of h i s p r o p e r t y so t a k e n . (6a)
Sec. 7. Report by commissioners and judgment

thereupon. — The court may order t h e c o m m i s s i o n e r s
t o r e p o r t w h e n a n y particular portion o f t h e real
estate shall have been passed upon by them, and
may r e n d e r j u d g m e n t u p o n s u c h partial report, and
d i r e c t t h e c o m m i s s i o n e r t o p r o c e e d w i t h t h e i r work
as to s u b s e q u e n t p o r t i o n s of t h e property s o u g h t
to be e x p r o p r i a t e d , and may from time to t i m e so
deal w i t h s u c h property. The c o m m i s s i o n e r s shall
m a k e a full and a c c u r a t e report to t h e court of all
839
their p r o c e e d i n g s , and s u c h p r o c e e d i n g s shall not

be effectual until the court shall have accepted their
report and r e n d e r e d j u d g m e n t in a c c o r d a n c e with
their recommendations. Except as otherwise
expressly ordered by t h e court, such report shall
be filed w i t h i n sixty (60) d a y s from t h e date the
c o m m i s s i o n e r s w e r e notified of their appointment,
w h i c h time may be e x t e n d e d in the discretion of the
court. Upon the filing of such report, the clerk of
court shall serve c o p i e s t h e r e o f on all interested
parties, w i t h notice that t h e y are allowed ten (10)
days w i t h i n w h i c h to file objections to the findings
of the report, if t h e y so desire. (7a)
Sec. 8. Action upon commissioner's report. — Upon

the expiration of the period o f t e n (10) days referred
t o i n t h e p r e c e d i n g s e c t i o n , o r e v e n before t h e
expiration of such period but after all the interested
parties have filed t h e i r objections to the report or
their s t a t e m e n t of a g r e e m e n t t h e r e w i t h , the court
may, after h e a r i n g , a c c e p t t h e report and render
j u d g m e n t in a c c o r d a n c e t h e r e w i t h ; or, for c a u s e
sh o w n, it may recommit the same to the
c o m m i s s i o n e r s for further report of facts; or it may
set aside the report and appoint new commissioners,
or it may a c c e p t the report in part and reject it in
part; and it may make such order or render such
judgment as shall secure to the plaintiff the
p r o p e r t y e s s e n t i a l to t h e e x e r c i s e of his right of
expropriation, and the defendant just com-
p e n s a t i o n for t h e property so taken. (8a)
Sec. 9. Uncertain ownership; conflicting claims.—

If the o w n e r s h i p of the property taken is uncertain,
or there are conflicting claims to any part thereof,
the court may order any s u m or sums awarded as
c o m p e n s a t i o n for t h e property to be paid to the
840
RULE 67 EXPROPRIATION S E C S . 8-9
c o u r t for t h e b e n e f i t of t h e p e r s o n a d j u d g e d in t h e
same proceeding to be entitled thereto. But the
j u d g m e n t shall r e q u i r e t h e p a y m e n t o f t h e s u m o r
sums awarded to either the defendant or the court
before t h e plaintiff c a n e n t e r u p o n t h e property, o r
r e t a i n it for t h e p u b l i c u s e or p u r p o s e if e n t r y h a s
a l r e a d y b e e n m a d e . (9a)
NOTES
1. The primary purpose of the proceedings by the

commissioners is to determine the just compensation to be
paid to the landowner. The general rule in arriving at
such just compensation is the value of the property as of
the date of its taking or the filing of the complaint (Sec. 4)
plus consequential damages minus consequential benefits,
provided such assessed benefits do not exceed the assessed
damages (Sec. 6).
2. The value of the property means the "market value
thereof, t h a t is, the price which it will command where
it is offered for sale by one who d e s i r e s , b u t is not
obliged to sell, and is bought by one under no necessity
of having it" (Manila Railroad Co. vs. Caligsihan, 40
Phil. 326). The assessed value is only prima facie evidence
of the actual value of the property if the assessment is
based on the sworn statement of the owner (Republic vs.
Urtula, 110 Phil. 262; cf. Mun. of Daet vs. CA, et al.,
L-35861, Oct. 18, 1979), while sentimental value is not
considered (Republic vs. Lara, 96 Phil. 170). Thereafter,
under P.D. 76 (Dec. 6, 1972), it was provided t h a t "(f)or
purposes of just compensation in cases of private property
acquired by the government for public use, the basis shall
be the current and fair market value declared by the owner
or administrator, or such market value as determined by
the assessor, whichever is lower" (see Sec. 92, P.D. 464,
as amended by P.D. 794, 1224 and 1259; NHA vs. Reyes,
et al., L-49439, June 29, 1983). The last issuance on
841
this m a t t e r was P.D. 1533 which provided t h a t "the

compensation to be paid shall not exceed the value declared
by the owner or administrator or any one having legal
interest in the property or determined by the assessor,
p u r s u a n t to t h e Real P r o p e r t y Tax Code, whichever
value is lower, prior to the recommendation or decision
of t h e a p p r o p r i a t e G o v e r n m e n t office to acquire the
property" (see Republic vs. Santos, et al., G.R. No. 57524,
Jan. 8, 1986).
However, in Export Processing Zone Authority vs.
Dulay, et al. (G.R. No. 59603, April 29, 1987), the Supreme
Court declared as invalid and unconstitutional P.D. 1533
and all its predecessor and related decrees, i.e., P.D. 76,
464, 794, 1224, 1259, 1669 and 1670, all of which adopted
and laid down the common formula t h a t the basis of just
compensation shall be the fair market value declared by
the owner of the property or the market value determined
by the assessor, whichever is lower. It held t h a t said
decrees constitute an impermissible encroachment on
judicial p r e r o g a t i v e s since t h e d e t e r m i n a t i o n of just
c o m p e n s a t i o n is r e s e r v e d for t h e c o u r t s by t h e
Constitution. Said decrees would also constitute denial
of due process and equal protection to the landowner
who is denied the right to question the assessor's deter-
mination, aside from preventing such determination by
commissioners. The r e t u r n to t h e former procedure
outlined in Rule 67 was decreed and the doctrine in NHA
vs. Reyes, supra, was abandoned (see Manotok, et al. vs.
NHA, et al, G.R. No. 55166 and Tiongson, et al. vs. NHA,
et al, G.R. No. 55167, jointly decided on May 21, 1987;
Ignacio vs. Guerrero, et al, L-49088, May 29, 1987;
Sumulong, et al. vs. Guerrero, et al, L-48685, Sept. 30,
1987; Leyva vs. IAC, et al, G.R. No. 70959, Oct. 26, 1987;
NHA vs. Zaballero, et al, L-49291-92, Oct. 29, 1987).
Furthermore, a judgment in expropriation proceed-
ings should provide for the payment of legal interest as a
matter of law from the time the Government takes over
842
RULE 67 EXPROPRIATION S E C S . 8-9
the land u n t i l it pays the owner thereof. If t h e com-

pensation is not paid when the property is taken, but is
postponed to a later date, the interest awarded is actually
part of the j u s t compensation which takes into account
such delay (Benguet Consolidated, Inc. vs. Republic,
G.R. No. 71412, Aug. 15, 1986).
3. The n a t u r e and the value of the land at the time

it was t a k e n by the Government should be the basis of
the price to be paid to the owner if the taking of possession
t h e r e o f w a s m a d e before t h e i n s t i t u t i o n o f t h e
e x p r o p r i a t i o n proceedings. The value at t h e time of
t h e filing of t h e c o m p l a i n t is d e t e r m i n a t i v e if t h e
taking of possession coincides with or is subsequent to the
commencement of the proceedings, with i n t e r e s t from
its t a k i n g a n d w i t h a t t o r n e y ' s fees to be d e t e r m i n e d
by the trial court (National Power Corp. vs. CA, et al.,
G.R. No. 56378, June 22, 1984, and cases cited therein).
4. The consequential benefits t h a t shall be deducted
refers to the actual benefits derived by the owner on the
remaining portion of his land which are the direct and
proximate results of the improvements consequent to the
e x p r o p r i a t i o n , and not the general benefits which he
receives in common with the community (29 C.J.S. 1063;
Republic vs. Vda. de Mortera, et al., 94 Phil. 1042
[Unrep.J).
5. The judgment rendered, requiring the payment
of the a w a r d determined as just compensation for the
condemned property and as a condition precedent for the
transfer of title to the Government, cannot be realized upon
execution, a s t h e l e g i s l a t u r e m u s t first a p p r o p r i a t e
the amount over and above the provisional deposit (Comm.
of Public Highways, et al. vs. San Diego, et al., L-30098,
Feb. 18, 1970).
6. The trial court has the jurisdiction to determine,
in the same expropriation proceedings, conflicting claims
843
RULE 67 R E M E D I A L LAW C O M P E N D I U M S E C . 10-11
of ownership over the property involved and to declare

the lawful owner thereof (Republic vs. CFI of Pampanga,
et al., L-27006, June 30, 1970).
Sec. 10. Rights of plaintiff after judgment and

payment. — Upon p a y m e n t by t h e plaintiff to the
d e f e n d a n t of the c o m p e n s a t i o n fixed by the
j u d g m e n t , w i t h l e g a l i n t e r e s t t h e r e o n from the
t a k i n g of t h e p o s s e s s i o n of the property, or after
t e n d e r to h i m of t h e a m o u n t so fixed and payment
of the c o s t s , t h e plaintiff shall h a v e t h e right to
enter u p o n the p r o p e r t y e x p r o p r i a t e d and to
appropriate it for t h e public u s e or purpose defined
in t h e j u d g m e n t , or to r e t a i n it s h o u l d he have
taken i m m e d i a t e p o s s e s s i o n t h e r e o f under the
provisions of s e c t i o n 2 hereof. If t h e d e f e n d a n t and
his c o u n s e l a b s e n t t h e m s e l v e s from t h e court, or
decline to r e c e i v e the a m o u n t t e n d e r e d , the same
shall be ordered to be d e p o s i t e d in court and such
deposit shall have the same effect as actual
p a y m e n t t h e r e o f t o t h e d e f e n d a n t o r the person
ultimately adjudged e n t i t l e d thereto. (10a)
S e c . 11. Entry not delayed by appeal; effect of

reversal. — The right of the plaintiff to enter upon
the property of the defendant and appropriate the
same for public use or purpose shall not be delayed
by an appeal from the j u d g m e n t . But if the
appellate court determines that plaintiff has no
right of expropriation, j u d g m e n t shall be rendered
o r d e r i n g t h e R e g i o n a l Trial Court t o f o r t h w i t h
e n f o r c e t h e r e s t o r a t i o n t o t h e d e f e n d a n t o f the
p o s s e s s i o n of the property, and to d e t e r m i n e the
damages which the defendant s u s t a i n e d and may
recover by reason of the p o s s e s s i o n taken by the
plaintiff. ( l l ) a
844
RULE 67 EXPROPRIATION SECS. 12-14
S e c . 12. Costs, by whom paid. — The fees of t h e

c o m m i s s i o n e r s s h a l l be t a x e d as a part of t h e c o s t s
o f t h e p r o c e e d i n g s . All c o s t s , e x c e p t t h o s e o f rival
c l a i m a n t s l i t i g a t i n g t h e i r c l a i m s , shall be paid by
t h e plaintiff, u n l e s s a n a p p e a l i s t a k e n b y t h e o w n e r
o f t h e p r o p e r t y a n d t h e j u d g m e n t i s affirmed, i n
w h i c h e v e n t t h e c o s t s of t h e a p p e a l shall be paid by
t h e o w n e r . (12a)
S e c . 13. Recording judgment, and its effect. — The

judgment entered in expropriation proceedings
s h a l l s t a t e d e f i n i t e l y , by an a d e q u a t e d e s c r i p t i o n ,
the particular property or interest expropriated, and
t h e n a t u r e of t h e p u b l i c u s e or p u r p o s e for w h i c h it
is e x p r o p r i a t e d . W h e n real e s t a t e is e x p r o p r i a t e d ,
a c e r t i f i e d c o p y of s u c h j u d g m e n t shall be r e c o r d e d
in t h e r e g i s t r y of d e e d s of t h e place in w h i c h t h e
p r o p e r t y is s i t u a t e d , a n d its effect shall be to v e s t
in t h e plaintiff t h e title to the real estate so described
for s u c h p u b l i c u s e or p u r p o s e . (13a)
Sec. 14. Power of guardian in such proceedings. —

The g u a r d i a n or g u a r d i a n ad litem of a m i n o r or of
a p e r s o n j u d i c i a l l y d e c l a r e d to be i n c o m p e t e n t may,
w i t h t h e a p p r o v a l o f t h e c o u r t first h a d , d o a n d
p e r f o r m on behalf of his ward any act, matter, or
t h i n g r e s p e c t i n g t h e e x p r o p r i a t i o n for public u s e
or p u r p o s e of p r o p e r t y b e l o n g i n g to s u c h m i n o r or
p e r s o n j u d i c i a l l y d e c l a r e d to be i n c o m p e t e n t , w h i c h
s u c h m i n o r or p e r s o n d e c l a r e d to be i n c o m p e t e n t
c o u l d do in s u c h p r o c e e d i n g s if he w e r e of age or
c o m p e t e n t . (14a)
NOTES
1. Under Sec. 11, the right of entry can immediately

be availed of by the plaintiff despite the pendency of any
appeal t h a t may be taken from the judgment; but, under
845
Sec. 10, in order that it can exercise such right of entry,

the plaintiff must first pay to the landowner or deposit
with the clerk of court the just compensation determined
in the judgment, (see Federated Realty Corp. vs. CA, et
al., G.R. No. 127967, Dec. 14, 2005)
2. In the event the judgment of expropriation is
reversed by the appellate court and the case is remanded
to the lower court with the mandate to determine the
damages caused to the landowner, such landowner has
the option of proving the damages either in the same
expropriation case or in a separate action instituted for
that purpose (MWC vs. De los Angeles, 55 Phil. 776).
The judgment denying the right of expropriation is not
res judicata on the issue of damages arising from such
illegal expropriation (Republic vs. Baylosis, 109 Phil. 580).
3. Where the expropriation judgment is final and
executory, the non-payment by the expropriating
authority of just compensation does not entitle the private
landowners to recover possession of their expropriated lots.
To argue for the return of their property would ignore the
fact that their right against the expropriating authority
is different from that of an unpaid seller in ordinary sales,
to which the remedy of rescission might perhaps apply.
Being an in rem proceeding, condemnation acts against
the property.
However, although the right to expropriate and use
the land taken is complete at the time of entry, title to the
property remains in the owner until payment is actually
made or deposited in court. Furthermore, the landowner
is entitled to interest computed from the time that the
property is actually taken to the time when compensation
is actually paid (Reyes, et al. vs. National Housing
Authority, G.R. No. 147511, Jan. 20, 2003).
4. Nevertheless while the prevailing doctrine is that
the non-payment of just compensation does not entitle the
846
RULE 67 EXPROPRIATION S E C . 12-14
landowner to recover possession of the expropriated lot,

i n c a s e s w h e r e t h e g o v e r n m e n t failed t o p a y j u s t
compensation within 5 years from the finality of judgment
in the expropriation proceeding, the owner shall have the
right to recover possession of his property. This is in
consonance with the principle t h a t the government cannot
keep the property and dishonor the judgment (Republic
vs. Lim, G.R. No. 161656, June 29, 2005).
Here, the expropriated property had been used as a
school site for five years while non-payment was effected
t h r o u g h legal m a n e u v e r s of the local government unit
which expropropriated the property. Under such
circumstances, it has been held in Municipality ofMakati
vs. CA, et al. (G.R. Nos. 89898-99, Oct. 1, 1990) t h a t the
claimant could have availed of the remedy of m a n d a m u s
to compel the enactment of the necessary appropriation
o r d i n a n c e a n d t h e d i s b u r s e m e n t of m u n i c i p a l funds
therefor (Yujuico vs. Atienza, Jr., et al., G.R. No. 164282,
Oct. 12, 2005).
5. To r e p e a t , t h e concept of j u s t c o m p e n s a t i o n
embraces not only the correct determination of the amount
to be paid to the owner of the land, but also the payment
thereof within a reasonable time from its taking. Without
prompt payment, compensation cannot be considered "just"
since the owner has been immediately deprived of his land
while being made to wait for a long period before receiving
the payment necessary to cope with his loss. To allow
the taking of the landowner's properties and to leave them
empty-handed while Government withholds compensation
is undoubtedly oppressive (Apo Fruits Corp. vs. CA, et al.,
G.R. No. 164195, Feb. 6, 2007 Barangay Sindalan, etc.
vs. CA, et al., G.R. No. 150640 Mar. 22, 2007).
J u s t compensation is intended to be the full and fair
equivalent of the property expropriated. The measure is
not the taker'8 gain but the owner's loss. The compensation
must be fair not only to the owner but also to the taker,
847
by avoiding under valuation against the former and

overvaluation against the latter consequent to delay in
the payment of the award. The amount is to be ascertained
as of the time of the taking which usually coincides with
the commencement of the expropriation proceedings.
Where the institution of the action precedes entry into
the property, the just compensation is to be ascertained as
of the time of the filing of the complaint (National Power
Corp. vs. De la Cruz, et al., G.R. No. 156093, Feb. 2, 2007).
6. As noted at the outset, the Local Government Code
(R.A. 7160) now regulates expropriation by the local
political subdivisions and provides as follows:
"Sec. 19. Eminent Domain. - A local government
unit may, through its chief executive and acting
through an ordinance, exercise the power of eminent
domain for public use, or purpose, or welfare for the
benefit of the poor and the landless, upon payment of
just compensation, pursuant to the provisions of the
Constitution and pertinent laws. Provided, however,
T h a t t h e power of e m i n e n t domain may not be
exercised unless a valid and definite offer has been
previously made to the owner and such offer was not
accepted; Provided, further, That the local government
may immediately take possession of the property upon
the filing of the expropriation proceedings and upon
making a deposit, with the proper court of at least
fifteen percent (15%) of the fair market value at the
time of the taking of the property."
7. Note the variance in certain particulars between

the foregoing special provisions on local governments and
those in Rule 67, such as the specific purposes, the
initiation of proceedings, the preliminary deposit, and the
ascertainment of compensation. In The City of Cebu vs.
Dedamo, et al. (G.R. No. 142971, May 7, 2002), which
involved a complaint for eminent domain filed by petitioner
in 1993, the Supreme Court ruled that the issue of just
848
RULE 67 EXPROPRIATION SEC. 12-14
compensation therein shall be determined based on the

fair market value at the time of the taking of the property,
p u r s u a n t to Sec. 19 of R.A. 7160. It pointed out t h a t
Sec. 4, Rule 67, which provided t h a t just compensation
shall be determined at the time of the filing of the complaint
for expropriation, cannot prevail over R.A. 7160 which is
a substantive law.
Parenthetically, the Supreme Court was obviously
referring to Rule 67 of the 1964 Rules of Court. As revised
in 1997, Sec. 4 of said Rule now provides t h a t the payment
of just compensation is to be determined as of the date of
the taking of the property or the filing of the complaint,
whichever came first.
8. See also the pertinent discussion in Jesus is Lord
Christian School Foundation, Inc. vs. City of Pasig (G.R.
No. 152230, Aug. 9, 2005).
849
RULE 68
FORECLOSURE OF
REAL ESTATE MORTGAGE
S e c t i o n 1. Complaint in action for foreclosure. —

In an action for the foreclosure of a mortgage or
other e n c u m b r a n c e u p o n real estate, the complaint
shall s e t forth t h e date and due e x e c u t i o n of the
mortgage; its a s s i g n m e n t s , if any; t h e n a m e s and
r e s i d e n c e s of t h e mortgagor and the mortgagee; a
description of t h e mortgaged property; a statement
of the date of the note or other documentary
e v i d e n c e of t h e obligation secured by the mortgage,
the a m o u n t claimed to be unpaid thereon; and the
n a m e s a n d r e s i d e n c e s o f all p e r s o n s h a v i n g o r
c l a i m i n g an i n t e r e s t in the property subordinate in
right to that of t h e holder of t h e mortgage, all of
w h o m shall be made d e f e n d a n t s in the actions, (la)
NOTES
1. This section is a virtual copy of the former Sec. 1

of this Rule.
2. A foreclosure action must be brought in the Court
of First Instance of the province where the land or any
part thereof is situated. If a mortgage contract covers
several distinct parcels of land s i t u a t e d in different
provinces, the action may be brought in the Court of First
Instance of any of the provinces and the judgment will be
enforceable against any of the parcels of land involved
(Monte de Piedad vs. Rodrigo, 56 Phil. 301; El Hogar
Filipino vs. Seva, 57 Phil. 537; B.P.I, vs. Green, 57 Phil.
712). Now, for Court of First Instance, read Regional
Trial Court; and, for province, read region, but subject to
the territorial allocation made by the Supreme Court of
850
RULE 68 FORECLOSURE OF SEC. 1
REAL ESTATE MORTAGE
the administrative area for the exercise of jurisdiction of

t h a t particular court.
3. A mortgagee may bring a personal action for the
amount due, instead of a foreclosure suit, in which case
he will be deemed to have waived his right to proceed
against the property in a foreclosure proceeding (Movido
vs. RFC, et al., 105 Phil. 886).
4. An unregistered real estate mortgage may be fore-
closed (Mobil-Oil Phil., Inc. vs. Tiocares, et al., L-26371,
Sept. 30, 1969).
5. T h e c a u s e of a c t i o n in a foreclosure s u i t is
generally the non-payment of the mortgage loan, but it
may be on other grounds which under the contract w a r r a n t
the foreclosure, such as the violation of some of the other
conditions therein.
6. Foreclosure may be made judicially or e x t r a -
judicially. Extrajudicial foreclosure is proper only when
so provided in the contracts in accordance with Act 3135,
as amended by Act 4118. See A.M. No. 99-10-05-0 for
the present procedure therefor (Appendix T). Rule 68,
on the other hand, governs judicial foreclosure.
7. In a foreclosure action, the following must be joined
as defendants:
(a) The persons obligated to pay the mortgage debt;
(b) The p e r s o n s who own, occupy or control t h e
mortgaged premises or any p a r t thereof (Soriano vs.
Enriquez, 24 Phil. 584);
(c) The transferee or grantee of the property (De
Villa vs. Fabricante, 105 Phil. 672); and
(d) The second mortgagee or junior encumbrancer,
or any person claiming a right or interest in the property
s u b o r d i n a t e to t h e mortgage sought to be foreclosed;
but if the action is by the junior encumbrancer, the first
851
R E M E D I A L LAW C O M P E N D I U M SEC. 2
mortgagee may also be joined as defendant (De la Riva

vs. Reynoso, 61 Phil. 734).
8. If the junior encumbrancer is not impleaded in
the suit, there will remain with him the unforeclosed
right of redemption which he can enforce against the first
mortgagee or the purchaser at the foreclosure sale, as he
is a redemptioner under Sec. 29(b) (now, Sec. 27[bJ),
Rule 39 which has suppletory effect to Rule 68 pursuant
to Sec. 3(a), Rule 1. Consequently, by including the
junior mortgagee in the suit, the relief sought against
him is the foreclosure of his right of redemption (see Top
Rate International Service, Inc. vs. IAC, et al., G.R.
Nos. 67496 and 68257, July 7, 1986, cited in Note 6
under Sec. 7, Rule 57). Of course, if he is impleaded as a
defendent and the foreclosure suit prospers, he is entitled
to be paid off from the residue after the first mortgagee
shall have been satisfied (Sec. 4).
Sec. 2. Judgment on foreclosure for payment or sale.

— If upon the trial in such action the court shall
find the facts set forth in the complaint to be true,
it shall a s c e r t a i n the a m o u n t d u e to the plaintiff
upon t h e m o r t g a g e debt or o b l i g a t i o n , i n c l u d i n g
interest and other charges as approved by the court,
and costs, and shall render j u d g m e n t for the sum so
found due and order that the same be paid to the
court or to the j u d g m e n t obligee within a period of
not less than ninety (90) days nor more than one
h u n d r e d t w e n t y (120) d a y s from the entry of the
judgment, and that in default of such payment the
property shall be sold at public auction to satisfy
the judgment. (2a)
NOTES
1. This section reproduces the former Sec. 2 of this

Rule but with the clarification that the judgment obligee
852
REAL ESTATE MORTAGE
shall be ordered to pay the judgment account within a

period of not less t h a n 90 days nor more than 120 days
from the entry of the judgment. The exact period must,
of course, be specified by the court in its judgment. The
former provision which required that such payment should
be made "within a period of not less t h a n ninety (90) days
from the date of the service of such order" spawned a
number of controversies because of its obvious ambiguity.
2. In view of t h e p r o c e d u r a l s t a g e s a n d t h e
adjudicative actions required to be taken by the trial court
in this special civil action, multiple appeals may be taken
in the case. Thus, the judgment of foreclosure provided
in this section, being a final adjudication of the issues
involved therein, is appealable. The order confirming
the foreclosure sale, contemplated in Sec. 3, is also a final
disposition with respect to the issue of the regularity
and validity of such sale and may likewise be challenged
on a p p e a l . The deficiency j u d g m e n t u n d e r Sec. 6 is
furthermore a disposition on the merits of the correctness
of such award and may properly be the subject of appeal.
As hereinbefore stated, the significance of such observation
is that, by reason of the multiplicity of appeals available
in this case, the reglementary period for appeal in any of
the three instances stated shall be 30 days, and a record
on appeal shall be required.
3. In extrajudicial foreclosure, the mortgagor has the

right to redeem the property within one year from the
r e g i s t r a t i o n of t h e deed of sale (Reyes vs. Noblejas,
L-23691, Nov. 25, 1967). The date of the sale mentioned
in Sec. 6 of Act 3135, as amended, should be construed to
mean the date of registration of the certificate of sale in
the registry of deeds (Santos vs. Register of Deeds of
Manila, L-26752, Mar. 19, 1971; Reyes vs. Tolentino, et
al., L 29142, Nov. 29, 1971).
In judicial foreclosure, t h e r e is no such right of
redemption, except in the case of mortgages with banking
853
institutions hereinafter to be discussed, but the mortgagor

has the "equity of redemption" which he can exercise at
any time after service of the judgment of foreclosure and
within the period provided herein, and even thereafter,
provided he does so before the foreclosure sale is confirmed
by the court (Anderson vs. Reyes, 54 Phil. 944). Upon
the confirmation of the foreclosure sale, title vests in the
purchaser, the confirmation retroacts to the date of the
sale, and the rights of the mortgagee and persons holding
under him are cut off, including the equity of redemption.
The purchaser cannot be considered as the successor-in-
interest of the mortgagor, hence he is not bound by the
t e r m s of t h e j u d g m e n t u n d e r which the foreclosure
sale was authorized (Lonzame vs. Amores, et al., G.R.
No. 53620, Jan. 31, 1985).
4. The provision of Sec. 2 granting the period for
p a y m e n t by t h e mortgagor is a m a n d a t o r y directive
and constitutes a substantive right of the mortgagor. It
cannot be omitted in judicial foreclosure (Ponce de Leon
vs. Ibanes, 95 Phil. 119; Herrera, et al. vs. Arellano,
et al., 97 Phil. 776); nor can the parties by agreement
change the procedure outlined by this Rule (Piano vs.
Cayanong, L-18603, Feb. 28, 1963). Said period is
suspended by an appeal taken from the judgment and is
not revived until said judgment is affirmed by the appellate
court and the case is returned to the trial court (Blossom
& Co. vs. Manila Gas Corp., 47 Phil. 670).
Sec. 3. Sale of mortgaged property; effect. — When

t h e d e f e n d a n t , after b e i n g d i r e c t e d t o d o s o a s
provided in the next p r e c e d i n g section, fails to pay
the amount of the j u d g m e n t within the period
s p e c i f i e d t h e r e i n , t h e c o u r t , u p o n m o t i o n , shall
order the property to be sold in the m a n n e r and
under the provisions of Rule 39 and other
r e g u l a t i o n s g o v e r n i n g s a l e s o f real e s t a t e under
execution. Such sale shall not affect the rights of
854
REAL ESTATE MORTAGE
persons holding prior encumbrances upon the

p r o p e r t y or a part thereof, and w h e n c o n f i r m e d by
an order of the court, also upon motion, it shall
o p e r a t e t o d i v e s t t h e r i g h t s i n t h e p r o p e r t y o f all
the parties to the action and to vest their rights in
the purchaser, subject to such rights of redemption
as m a y be a l l o w e d by law.
U p o n t h e finality of t h e order of c o n f i r m a t i o n
o r u p o n t h e e x p i r a t i o n o f t h e period o f r e d e m p t i o n
w h e n a l l o w e d b y law, t h e p u r c h a s e r a t t h e a u c t i o n
s a l e or l a s t r e d e m p t i o n e r , if any, shall be e n t i t l e d
to the p o s s e s s i o n of the property unless a third
party i s a c t u a l l y h o l d i n g t h e s a m e a d v e r s e l y t o t h e
j u d g m e n t obligor. The said purchaser or last
r e d e m p t i o n e r m a y s e c u r e a writ of p o s s e s s i o n , u p o n
motion, from the court which ordered the
f o r e c l o s u r e . (3a)
NOTES
1. To the first paragraph of this amended section,

which i s t h e s a m e a s t h a t a p p e a r i n g i n t h e former
provision, has been added a second paragraph regulating
the issuance of a writ of possession. As a general rule,
the purchaser is entitled to possession of the property sold
to him upon the finality of the order of confirmation of
the sale; and the same is true with respect to the last
r e d e m p t i o n e r , upon t h e e x p i r a t i o n of t h e period of
redemption. The second paragraph, however, provides
for exceptions as evolved in our jurisprudence.
2. Where, after extrajudicial foreclosure of a real
estate mortgage, the mortgagee purchased the same at
the foreclosure sale, he shall be entitled to a writ of
possession despite the fact that the premises are in the
possession of a lessee whose lease has not yet terminated,
unless the lease has been previously registered in the
Registry of Property or the mortgagee had prior actual
855
knowledge of the existence of the lease. Under Sec. 7

of Act 3135, as amended, the petition for such writ of
possession shall be made u n d e r oath and filed as an
ex parte motion in the registration or cadastral pro-
ceedings of the property (Ibasco, et al. vs. Caguioa, et al.,
G.R. No. 62619, Aug. 19, 1986).
3. Thus, in Barican, et al. vs. IAC, et al. (G.R. No.
79906, June 20, 1988), the Supreme Court reiterated the
well-settled rule that the purchaser in a foreclosure sale
is entitled to a writ of possession and that, upon an ex
parte motion of the purchaser, it is ministerial upon the
court to issue a writ of possession in his favor. He is not
required to bring a separate action for possession after
the redemption period has expired. However, where the
parties in possession claim ownership thereof and, it may
be added, if there is some plausibility in their claim, that
issue must first be ventilated in a proper hearing of the
merits thereof.
4. If the debt is not paid within the period pro-

vided for in Sec. 2, it is the ministerial duty of the court to
order the foreclosure sale of the property. A motion for
such order of sale is non-litigable and may be made
ex parte (Gov't of P.I. vs. De las Cajigas, 55 Phil. 667).
However, the motion for the confirmation of the sale
r e q u i r e s a h e a r i n g to g r a n t an o p p o r t u n i t y to the
mortgagor to show cause why the sale should not be
confirmed (Tiglao vs. Botones, 90 Phil. 275), as by proof
of irregularities therein or of gross inadequacy of the price.
Lack of notice vitiates the confirmation of the sale. Where
the property was sold to a third person before confirmation
of the foreclosure sale, said vendee should be given notice
and said sale does not prevent the court from granting
the mortgagor a period within which to redeem (Rural
Bank of Oroquieta vs. CA, et al, supra).
5. An order confirming the foreclosure sale made by

the sheriff is appealable (De la Cruz, Jr. vs. Sta. Maria,
856
REAL ESTATE MORTAGE
L-17928, April 30, 1963).
6. Upon the confirmation of the foreclosure sale, the

equity of redemption is cut off and title vests in favor of
t h e p u r c h a s e r r e t r o a c t i v e to t h e d a t e of a c t u a l sale
(Grimalt vs. Velazquez, et al, 36 Phil. 936). There will,
thereafter, be no further right of redemption, except in
judicial foreclosure of mortgages by the Development Bank
of the Philippines (CA. 459), the Philippine National Bank
(Acts 2747 and 2938; now, Sec. 30, R.A. 1300), b a n k s ,
banking or credit institutions (Sec. 78, R.A. 1300 [General
Banking Act]) and r u r a l banks (R.A. 2670). With respect
to foreclosure made by the Philippine National Bank, the
mortgagor has one year from the registration of the deed
of sale, w h e t h e r the foreclosure was judicial (Sec. 30,
R.A. 1300) or extrajudicial (Act 3135, as amended by Act
4118) as long as the land is registered under Act 496
(Quimson vs. PNB, L-24920, Nov. 24, 1970).
7. Foreclosure of mortgages to banking institutions,

w h e t h e r judicially or extrajudicially, is subject to legal
redemption, but the party redeeming must pay the amount
fixed by the court in the order of execution, not the amount
for which the property was purchased at public auction
(Ponce de Leon vs. RFC, L-24571, Dec. 18, 1970; Sec. 78,
R.A. 337). The same rule applies to foreclosures effected
by the Philippine National Bank and the Development
Bank of the Philippines, as provided for in their respective
c h a r t e r s (DBP vs. Mirang, L-29130, Aug. 8, 1975). In
o t h e r execution sales, t h e redemption a m o u n t is t h e
auction price with interest (Dulay vs. Carriaga, et al, G.R.
No. 52831, July 29, 1983).
Sec. 4. Disposition of proceeds of sale. — T h e

a m o u n t r e a l i z e d from t h e f o r e c l o s u r e s a l e o f t h e
m o r t g a g e d property shall, after d e d u c t i n g t h e c o s t s
of t h e sale, be paid to t h e p e r s o n f o r e c l o s i n g t h e
m o r t g a g e , a n d w h e n there shall be any balance or
857
residue, after p a y i n g off t h e m o r t g a g e d e b t due, the

same shall be paid to junior encumbrancers in the
order of their priority, to be ascertained by the
court, or if there be no such encumbrancers or there
be a balance or residue after p a y m e n t to them, then
to the mortgagor or his duly authorized agent, or
t o t h e p e r s o n e n t i t l e d t o it. ( 4 a )
S e c . 5. How sale to proceed in case the debt is not

all due. — I f t h e d e b t f o r w h i c h t h e m o r t g a g e o r
e n c u m b r a n c e w a s h e l d is not all d u e as p r o v i d e d in
the judgment, as soon as a sufficient portion of the
property has been sold to pay the total amount and
t h e c o s t s d u e , t h e sale shall t e r m i n a t e ; a n d after-
w a r d s , a s o f t e n a s m o r e b e c o m e s d u e for p r i n c i p a l
or interest and other valid charges, the court may,
on motion, order m o r e to be sold. But if the property
cannot be sold in portions without prejudice to the
parties, the whole shall be ordered to be sold in the
first i n s t a n c e , a n d t h e e n t i r e d e b t a n d c o s t s shall
be paid, if the proceeds of the sale be sufficient
therefor, there being a rebate of interest where such
r e b a t e is proper. (5a)
S e c . 6. Deficiency judgment. — I f u p o n t h e s a l e
of any real property as provided in the next
preceding section there be a balance due to the
plaintiff after applying the proceeds of the sale, the
court, upon motion, shall render judgment against
t h e d e f e n d a n t for a n y s u c h b a l a n c e for w h i c h , by
the record of the case, he m a y be personally liable
t o the plaintiff, u p o n w h i c h e x e c u t i o n m a y issue
i m m e d i a t e l y if t h e balance is all d u e at t h e time of
the rendition of the judgment; otherwise, the
plaintiff shall be entitled to execution at such time
as the balance remaining becomes due under the
terms of the original contract, which time shall be
stated in t h e j u d g m e n t . (6a)
858
RULE 68 FORECLOSURE OF S E C S . 5-6
NOTES
1. Sec. 6 provides for a deficiency judgment which

shall be rendered, on motion, when the foreclosure sale
did not produce proceeds sufficient to satisfy the judgment.
Such a deficiency judgment is immediately executory if
the balance is all due.
Where, however, the mortgage was executed by a
third person to secure the obligation of a debtor, such third
person not h a v i n g a s s u m e d personal liability for t h e
payment of the debt, the extent of recovery in the judgment
of foreclosure shall be limited to the purchase price at the
foreclosure sale a n d no deficiency j u d g m e n t can be
recovered against said person (Phil. Trust Co. vs. Tan
Suisa, 52 Phil. 852). The reason for this is the fact t h a t
the mortgage contract itself delimits the extent of the relief
against the third party mortgagor. The remedy of the
mortgagee is to proceed against the debtor in an ordinary
action for a sum of money to recover the balance of the
debt due.
2. In extrajudical foreclosure, the mortgagee can also

recover by action any deficiency in the mortgage account
which was not realized in the foreclosure sale (DBP vs.
Mirang, L-29130, Aug. 8, 1975; DBP vs. Zaragosa,
L-23493, Aug. 23, 1978; PNB vs. CA, et al., G.R. No.
121739, June 14, 1999). T h e r e can be no deficiency
j u d g m e n t as t h e r e was no judicial proceeding in t h e
foreclosure of the mortgage itself.
3. A different rule applies in the case of a mortgage
debt due from the estate of a deceased mortgagor. Under
Sec. 7, Rule 86, t h e r e are t h r e e a l t e r n a t i v e remedies
available to the mortgage creditor who, however, can avail
of only one of them. If he avails of the third mode, t h a t is,
by relying upon his mortgage alone and foreclosing the
same within the statute of limitations, he thereby waives
any deficiency claim. This bar to an action for recovery
859
of any deficiency applies w h e t h e r he foreclosed the

mortgage judicially or extrajudicially (Phil. National Bank
vs. CA, et al., G.R. No. 121571, June 29, 2001). This is
because said Sec. 7 provides that, in such event, he shall
neither be admitted as a creditor nor further share in the
assets of the estate.
Sec. 7. Registration. — A certified copy of t h e

final order of the court c o n f i r m i n g the sale
shall be registered in the registry of deeds. If no
right of r e d e m p t i o n e x i s t s , the certificate of title of
the mortgagor shall be c a n c e l l e d , and a new one
issued in the name of the purchaser.
Where a right of redemption exists, the certi-
ficate of title in t h e name of t h e mortgagor shall
not be cancelled, but the certificate of sale and the
order confirming t h e sale shall be registered and a
brief m e m o r a n d u m t h e r e o f made by the registrar of
d e e d s upon t h e certificate of title. In the e v e n t the
property is r e d e e m e d , t h e deed of redemption shall
be registered w i t h the registry of deeds, and a brief
m e m o r a n d u m thereof shall be made by the registrar
of d e e d s on said certificate of title.
If the property is not r e d e e m e d , the final deed
of sale e x e c u t e d by the sheriff in favor of the
purchaser at the foreclosure sale shall be registered
with t h e registry of d e e d s , w h e r e u p o n the certifi-
cate of title in t h e name of the mortgagor shall be
c a n c e l l e d and a new certificate issued in the name
of the purchaser, (n)
Sec. 8. Applicability of other provisions. — The

provisions of s e c t i o n s 31, 32 and 34 of Rule 39 shall
be a p p l i c a b l e to t h e j u d i c i a l f o r e c l o s u r e of real
e s t a t e m o r t g a g e s u n d e r t h i s Rule insofar a s the
former are not i n c o n s i s t e n t with or may serve to
s u p p l e m e n t the provisions of the latter. (8a)
860
RULE 68 FORECLOSURE OF S E C S . 7-8
NOTES
1. Sec. 7 has been supplemented by the provisions

of Sec. 61 of P.D. 1529 on land registration, with some
modifications, to provide more specificity to the procedure
for registration relative to foreclosure sales.
2. The former Sec. 8 of this Rule providing for judicial
foreclosure of chattel mortgages has been eliminated as
the subject is more properly addressed to the provisions of
the Chattel Mortgage Law and the pertinent prescriptions
thereon of the Civil Code.
3. For special provisions on foreclosure of mortgages

by g o v e r n m e n t financial i n s t i t u t i o n s , see P.D. 385,
effective J a n u a r y 31, 1974, with the purpose thereof and
t h e l i m i t a t i o n s t h e r e o n being explained in Filipinos
Marble Corp. vs. IAC, et al. (G.R. No. 68010, May 30,
1986).
4. In A.M. No. 99-10-05-0, t h e S u p r e m e C o u r t
adopted the additional Rules on the Procedure in
E x t r a j u d i c i a l or J u d i c i a l Foreclosure of Real E s t a t e
Mortgages, effective March 10, 2007, as follow:
(1) No temporary restraining order or writ of
p r e l i m i n a r y injunction a g a i n s t t h e e x t r a j u d i c i a l
foreclosure of real estate mortgage shall be issued on
the allegation t h a t the loan secured by the mortgage
has been paid or is not deliquent unless the application
is verified and supported by evidence of payment.
(2) No temporary restraining order or writ of
p r e l i m i n a r y injunction a g a i n s t the extrajudicial
foreclosure of real estate mortgage shall be issued on
t h e a l l e g a t i o n t h a t t h e i n t e r e s t o n t h e loan i s
unconscionable, unless the debtor pays the mortgage
at least twelve percent per annum interest on the
p r i n c i p a l obligation as s t a t e d in the application
obligation as stated in the application for foreclosure
861
sale, which shall be updated monthly while the case

is pending.
(3) Where a writ of preliminary injunction has
been issued against a foreclosure of mortgage, the
disposition of the case shall be speedily resolved. To
this end, the court concerned shall submit to the
S u p r e m e Court, t h r o u g h t h e Office of the Court
Administrator, quarterly reports on the progress of
the cases involving ten million pesos and above.
(4) All requirements and restrictions prescribed
for the issuance of a temporary restraining order/writ
of preliminary injunction, such as the posting of a
bond, which shall be equal to the amount of the
o u t s t a n d i n g debt, and the time limitation for its
effectivity, shall apply as well to the status quo order.
Upon the effectivity of said additional rules, al rules,
resolutions, orders and circulars of the Court, which are
i n c o n s i s t e n t t h e r e w i t h , a r e r e p e a l e d o r modified
accordingly.
862
RULE 69
PARTITION
S e c t i o n 1. Complaint in action for partition of real

estate. — A p e r s o n h a v i n g t h e right to c o m p e l t h e
p a r t i t i o n o f real e s t a t e m a y d o s o a s p r o v i d e d i n t h i s
Rule, s e t t i n g forth i n h i s c o m p l a i n t t h e n a t u r e a n d
extent of his title and an adequate description of
the real estate of which partition is demanded and
j o i n i n g a s d e f e n d a n t s all o t h e r p e r s o n s i n t e r e s t e d
in the property, (la)
Sec. 2. Order for partition, and partition by agree-

ment thereunder. — If after t h e trial t h e c o u r t finds
t h a t t h e plaintiff h a s t h e r i g h t t h e r e t o , it shall order
t h e p a r t i t i o n o f t h e real e s t a t e a m o n g all t h e p a r t i e s
in i n t e r e s t . T h e r e u p o n t h e p a r t i e s may, if t h e y are
able t o a g r e e , m a k e t h e p a r t i t i o n a m o n g t h e m s e l v e s
by p r o p e r i n s t r u m e n t s of c o n v e y a n c e , and t h e c o u r t
s h a l l c o n f i r m t h e p a r t i t i o n so a g r e e d u p o n by all
the parties, and such partition, together with the
order of the court confirming the same, shall be
recorded in the registry of deeds of the place in
w h i c h t h e p r o p e r t y is s i t u a t e d . (2a)
A final order d e c r e e i n g partition and/or
a c c o u n t i n g may be a p p e a l e d by any party a g g r i e v e d
t h e r e b y , (n)
NOTES
1. The p a r t i t i o n of property may be voluntarily

effected by agreement or compulsorily as under this Rule.
Even if the p a r t i e s had resorted to judicial partition,
they may still make an amicable partition of the property
(Secs. 2 and 12).
863
2. Actions for partition should be filed in the Court

of First Instance of the province where the property or a
part thereof is situated. If several distinct parcels of land
are situated in different provinces, venue may be laid in
the Court of F i r s t I n s t a n c e of any of said provinces
(Pancho, et al. vs. Villanueva, et al., 99 Phil. 611).
3. The right of action to demand partition does not
prescribe (De Castro vs. Echarri, 20 Phil. 23), except where
one of the interested parties openly and adversely occupies
t h e p r o p e r t y w i t h o u t recognizing t h e co-ownership
(Cordova vs. Cordova, 102 Phil. 1182 [Unrep.J) in which
case acquisitive prescription may set in.
4. Formerly, the rule was that the order for parti-
tion in Sec. 2 is not a final, but an interlocutory, order,
hence it is not appealable. It is when the final judgment
is rendered, after the proceedings of the commissioners
for the partition of the land are submitted and confirmed,
t h a t appeal is available (see Vda. de Zaldarriaga vs.
Enriquez, L 13252, April 29, 1961). Subsequently,
however, it was held t h a t the decision of a trial court
granting recovery of properties for the purpose of ordering
their partition is a definitive and appealable judgment
because it decides the rights of the p a r t i e s upon the
issue submitted. Unless the issue of ownership is definitely
resolved, it would be premature to effect a partition of
the properties (Miranda, et al. vs. CA, et al., L-33007,
June 18, 1976; Valdez vs. Bagaso, L-46608, Mar. 8, 1978;
Fabrica, et al. vs. CA, et al., L-47360, Dec. 15, 1986). This
has now been confirmed by the addition of the second
paragraph of Sec. 2.
Sec. 3. Commissioners to make partition when

parties fail to agree. — If the parties are unable to
agree upon the partition, t h e court shall appoint
not more than three (3) competent and disinterested
p e r s o n s as c o m m i s s i o n e r s to make the partition,
864
RULE 69 PARTITION SECS. 4-6
c o m m a n d i n g t h e m t o s e t off t o t h e p l a i n t i f f a n d
to e a c h party in i n t e r e s t s u c h part and p r o p o r t i o n
of t h e p r o p e r t y as t h e c o u r t shall direct. (3a)
Sec. 4. Oath and duties of commissioners. — Before

making such partition, the commissioners shall
t a k e a n d s u b s c r i b e a n oath t h a t t h e y will faithfully
perform their duties as commissioners, which
o a t h s h a l l b e filed i n c o u r t w i t h t h e o t h e r p r o -
c e e d i n g s in t h e c a s e . In m a k i n g t h e p a r t i t i o n , t h e
c o m m i s s i o n e r s shall view and examine the real
e s t a t e , after d u e n o t i c e to t h e p a r t i e s to a t t e n d at
such view and examination, and shall hear the
p a r t i e s as to t h e i r p r e f e r e n c e in t h e portion of t h e
property to be set apart to them and the
c o m p a r a t i v e v a l u e thereof, and shall s e t apart t h e
s a m e to t h e p a r t i e s in lots or p a r c e l s as will be m o s t
a d v a n t a g e o u s and e q u i t a b l e , h a v i n g d u e regard t o
the improvements, situation and quality of the
different p a r t s thereof. (4a)
Sec. 5. Assignment or sale of real estate by commis-

sioners. — W h e n i t i s m a d e t o a p p e a r t o t h e
c o m m i s s i o n e r s t h a t t h e real e s t a t e , or a p o r t i o n
thereof, c a n n o t be d i v i d e d w i t h o u t prejudice to t h e
interest of the parties, the court may order it
assigned to one of the parties willing to take the
same, provided he pays to the other parties such
amounts as the commissioners deem equitable,
u n l e s s one o f t h e i n t e r e s t e d p a r t i e s a s k s t h a t t h e
p r o p e r t y be sold i n s t e a d of b e i n g so a s s i g n e d , in
w h i c h c a s e t h e c o u r t shall order the c o m m i s s i o n e r s
to sell the real estate at public sale under such
c o n d i t i o n s a n d w i t h i n such time a s t h e court may
d e t e r m i n e . (5a)
Sec. 6. Report of commissioners; proceedings not

binding until confirmed. — T h e c o m m i s s i o n e r s
865
shall make a full and accurate report to the court

of all their p r o c e e d i n g s as to t h e partition, or the
a s s i g n m e n t of real estate to one of the parties, or
the sale of the same. Upon the filing of such report,
the clerk of court shall serve copies thereof on all
t h e i n t e r e s t e d p a r t i e s w i t h n o t i c e t h a t t h e y are
allowed ten (10) days within w h i c h to file objections
to the findings of the report, if t h e y so desire. No
p r o c e e d i n g had before or c o n d u c t e d by the
c o m m i s s i o n e r s shall pass the title to the party or
bind the parties until the court shall have accepted
the report of the commissioners and rendered
j u d g m e n t t h e r e o n . (6a)
Sec. 7. Action of the court upon commissioners'

report. — Upon t h e expiration of the period of ten
(10) days referred to in the preceding section, or even
before the e x p i r a t i o n of such period but after the
interested parties have filed their objections to the
report or their s t a t e m e n t of a g r e e m e n t therewith,
t h e c o u r t may, u p o n h e a r i n g , a c c e p t t h e report
and render judgment in accordance therewith;
or, for c a u s e s h o w n , r e c o m m i t t h e s a m e t o t h e
c o m m i s s i o n e r s for further report of facts; or set
aside the report and a p p o i n t new commissioners;
or a c c e p t the report in part and reject it in part;
and may make such order and render such judgment
as shall effectuate a fair and just partition of the
real e s t a t e , or of its v a l u e , if a s s i g n e d or sold as
above provided, between the several owners
thereof. (7)
Sec. 8. Accounting for rent and profits in action for

partition. — In an action for partition in accordance
with this Rule, a party shall recover from another
his just share of r e n t s and profits received by such
other party from the real e s t a t e in question, and
the j u d g m e n t shall include an allowance for such
866
RULE 69 PARTITION S E C S . 9-11
r e n t s a n d profits. (8a)
Sec. 9. Power of guardian in such proceedings. —

T h e g u a r d i a n or g u a r d i a n ad litem of a m i n o r or
p e r s o n j u d i c i a l l y d e c l a r e d t o b e i n c o m p e t e n t may,
w i t h t h e a p p r o v a l o f t h e c o u r t first h a d , d o a n d
p e r f o r m on b e h a l f of h i s ward a n y act, m a t t e r , or
t h i n g r e s p e c t i n g t h e p a r t i t i o n o f real e s t a t e , w h i c h
the minor or person judicially declared to be
incompetent could do in partition proceedings if he
w e r e of a g e or c o m p e t e n t . (9a)
Sec. 10. Costs and expenses to be taxed and collected.

— The court shall equitably tax and apportion
between or among the parties the costs and
expenses which accrue in the action, including the
c o m p e n s a t i o n o f t h e c o m m i s s i o n e r s , h a v i n g regard
to the interest of the parties, and execution may
i s s u e t h e r e f o r as in o t h e r c a s e s . (10a)
Sec. 11. The judgment and its effect; copy to be

recorded in registry of deeds. — If a c t u a l p a r t i t i o n of
property is made, the judgment shall state
definitely, by metes and bounds and adequate
d e s c r i p t i o n , t h e particular portion of t h e real e s t a t e
a s s i g n e d to each party, and the effect of the
j u d g m e n t shall be to v e s t in e a c h party to t h e a c t i o n
in s e v e r a l t y t h e portion of the real e s t a t e a s s i g n e d
to him. If t h e w h o l e property is a s s i g n e d to o n e
of the parties upon his paying to the others the
s u m or s u m s o r d e r e d by t h e court, t h e j u d g m e n t
s h a l l s t a t e t h e fact o f s u c h p a y m e n t a n d o f t h e
a s s i g n m e n t of t h e real e s t a t e to the party m a k i n g
t h e p a y m e n t , and t h e effect of the j u d g m e n t shall
b e t o v e s t i n t h e party m a k i n g t h e p a y m e n t t h e
w h o l e of t h e real e s t a t e free from any i n t e r e s t on
t h e part of t h e other parties to the action. If the
property is sold and the sale confirmed by the court,
867
the j u d g m e n t shall state the name of the purchaser

or p u r c h a s e r s a n d a d e f i n i t e d e s c r i p t i o n of the
parcels of real estate sold to e a c h purchaser, and
the effect of the j u d g m e n t shall be to vest the real
estate in the purchaser or p u r c h a s e r s m a k i n g the
payment or p a y m e n t s , free from t h e claims of any
of the parties to the action. A certified copy of the
j u d g m e n t shall in e i t h e r c a s e be r e c o r d e d in the
registry of d e e d s of the place in which the real estate
is situated, and the e x p e n s e s of such recording shall
be taxed as part of the costs of t h e action. (11a)
Sec. 12. Neither paramount rights nor amicable

partition affected by this Rule. — N o t h i n g in this Rule
c o n t a i n e d shall be c o n s t r u e d so as to prejudice,
defeat, or destroy t h e right or title of any person
claiming the real e s t a t e involved by title under any
other person, or by title p a r a m o u n t to the title of
the p a r t i e s a m o n g w h o m t h e p a r t i t i o n may have
been made; nor so as to restrict or p r e v e n t persons
h o l d i n g r e a l e s t a t e j o i n t l y o r i n c o m m o n from
m a k i n g an amicable partition t h e r e o f by a g r e e m e n t
and s u i t a b l e i n s t r u m e n t s o f c o n v e y a n c e w i t h o u t
recourse to an action. (12a)
Sec. 13. Partition of personal property. — The

provisions of this Rule shall apply to partitions of
e s t a t e s composed of personal property, or of both
real and personal property, in so far as the same
may be applicable. (13)
NOTES
1. It is in partition and expropriation proceedings

that reference to commissioners is required as a proce-
dural step in the action. In other cases, reference to
commissioners is discretionary with the court (see Rule
32 and notes thereunder).
868
RULE 69 PARTITION SECS. 12-13
2. The commissioners appointed by the court have

the power and duty only to effect the partition of t h e
property. They have no power to inquire into the question
of ownership or right to the possession of the property
(Araullo vs. Araullo, 3 Phil. 567), nor of claims to title or
right of possession by third persons (Sec. 12).
869
RULE 70
FORCIBLE ENTRY AND

UNLAWFUL DETAINER
S e c t i o n 1. Who may institute proceedings, and

when. — S u b j e c t to t h e p r o v i s i o n s of t h e n e x t
s u c c e e d i n g section, a person deprived of the
p o s s e s s i o n of any land or b u i l d i n g by force,
i n t i m i d a t i o n , t h r e a t , s t r a t e g y , or s t e a l t h , or a
lessor, vendor, vendee, or other person against
w h o m t h e p o s s e s s i o n of a n y land or b u i l d i n g is
unlawfully withheld after the expiration or
termination of the right to hold possession, by
virtue of any contract, e x p r e s s or implied, or the
legal r e p r e s e n t a t i v e s or a s s i g n s of any such lessor,
vendor, v e n d e e , or other person, may, at any time
within one (1) year after s u c h unlawful deprivation
or w i t h h o l d i n g of p o s s e s s i o n , bring an action in the
proper Municipal Trial Court a g a i n s t the person or
persons unlawfully withholding or depriving of
possession, or any person or persons claiming
under t h e m , for the restitution of such possession,
together with d a m a g e s and costs, ( l a )
Sec. 2. Lessor to proceed against lessee only after

demand. — Unless o t h e r w i s e stipulated, such action
by the lessor shall be c o m m e n c e d only after demand
to pay or comply w i t h the c o n d i t i o n s of the lease
and to vacate is made upon the lessee, or by serving
written notice of such demand upon the person
found on the p r e m i s e s , or by p o s t i n g such notice
on the premises if no person be found thereon, and
the lessee fails to comply t h e r e w i t h after fifteen (15)
days in the case of land or five (5) days in the case
of buildings. (2a)
870
RULE 70 FORCIBLE ENTRY A N D SEC. 2
UNLAWFUL DETAINER
NOTES
1. The provisions of the former Sec. 1 of this Rule

have been maintained in this amended Sec. 1, except t h a t
the requirement for the verification of the complaint has
been included in the provisions of the present Sec. 4 since,
as a consequence of the adoption of the summary rule for
ejectment cases, all the pleadings authorized therein are
required to be verified.
The reference to the Agricultural Tenancy Act in said
former Sec. 1 has also been transposed to the new Sec. 3,
under the general denomination of all agricultural tenancy
laws, due to the developments in the coverage of social
legislation since 1964.
T h e p r e s e n t Sec. 2 r e t a i n s t h e s u b s t a n c e of its
predecessor, the text of which was merely rephrased for
simplicity and clarity.
2. Ejectment suits can be maintained with respect to
all kinds of land (Robles vs. Zambales Chromite Mining
Co., 104 Phil. 688), but agricultural lands under tenancy
are now subject to the land reform laws, and cases arising
t h e r e u n d e r were within the jurisdiction of the agrarian
courts. Said a g r a r i a n courts, however, have now been
integrated with the Regional Trial Court, as branches
thereof, under B.P. Blg. 129. See the subsequent changes
as explained in Note 2 under Sec. 2 of Rule 1.
The inferior court has no jurisdiction over an agrarian
dispute even if the action obstensibly appears to be one
for forcible entry (Arevalo vs. Benedicto, et al., L-27895,
July 31, 1974).
3. The t h r e e kinds of action for t h e recovery of
possession of real property are:
a. Accion interdictal, or an ejectment proceeding
under this Rule, which may be either that for forcible entry
(detentacion) or unlawful detainer (desahucio), which is
871
a summary action for the recovery of physical possession

where the dispossession has not lasted for more than one
year, and should be brought in the proper inferior court;
b. Action publiciana, or the plenary action for the
recovery of the real right of possession, which should be
brought in the proper Regional Trial Court when the
dispossession has lasted for more than one year; and
c. Action reivindicatoria, or action de revindication,
which is an action for the recovery of ownership (and
which includes the recovery of possession) which must
also be brought in the proper Regional Trial Court (see
Firmeza vs. David, 92 Phil. 733; Emilia vs. Bado, L-23685,
April 25, 1968).
4. This Rule provides for the action interdictal which
may either be for forcible entry or unlawful detainer.
These two forms of ejectment suits may be distinguished
as follows:
a. In forcible entry, the possession of the land by
the defendant is unlawful from the beginning as he
acquires possession thereof by force, intimidation, threat,
s t r a t e g y or s t e a l t h ; while in unlawful d e t a i n e r , the
possession of the defendant is inceptively lawful but it
becomes illegal by reason of the termination of his right
to the possession of the property under his contract with
the plaintiff (Dikit vs. Ycasiano, 89 Phil. 44).
b. In forcible entry, the Rule does not require a
previous demand for the defendant to vacate the premises;
but in unlawful detainer, the plaintiff must first make
such demand, which is jurisdictional in nature (Sec. 2;
Medel vs. Militante, 41 Phil. 44).
c. In forcible entry, the plaintiff must prove that he
was in prior physical possession of the premises until
he was deprived thereof by the defendant; in unlawful
detainer, the plaintiff need not have been in prior physical
possession (Maddamu vs. Judge of Mun. Court, etc.,
872
RULE 70 FORCIBLE ENTRY AND SEC. 2
UNLAWFUL DETAINER
et al., 74 Phil. 230; Aguilar vs. Cabrera, 74 Phil. 666;

Banayos vs. Susana Realty, Inc., L-30336, June 30, 1976;
Pharma Industries, Inc. vs. Pajarillaga, et al., G.R. No.
53788, Oct. 17, 1980).
d. In forcible entry, the one-year period is generally
counted from t h e date of actual entry on the land; in
unlawful detainer, from the date of last demand (Sarona,
et al. vs. Villegas, et al., L-22984, Mar. 27, 1968) or last
letter of demand (Racaza vs. Susana Realty, Inc., L-20330,
Dec. 22, 1966; Calibayan vs. Pascual, L-22645, Sept. 18,
1967; DBP vs. Canonoy, L-29422, Sept. 30, 1970).
5. W h a t d e t e r m i n e s the cause of action, w h e t h e r

forcible e n t r y or unlawful d e t a i n e r , is t h e n a t u r e of
defendant's entry into the land. If the dispossession is
not alleged to have t a k e n place by any of t h e m e a n s
specified by Sec. 1, Rule 70, the action is a plenary action
within the competence of the Court of First Instance and
may be filed even within one year from the dispossession
committed by defendant (Banayos vs. Susana Realty,
Inc., supra; Sarmiento vs. CA, et al., G.R. No. 116192,
Nov. 16, 1995).
6. The plaintiff in forcible e n t r y a n d unlawful

detainer actions may be the owner, a co-owner, or his legal
representative and/or assignee, or the landlord, the vendor,
the vendee or the person entitled to the physical possession
of the property.
The defendant should be the one who is in possession
of the property, who may either be the lessee, the sublessee
or an intruder in the premises.
The action may be b r o u g h t a g a i n s t g o v e r n m e n t
officials or agents acting in behalf of the Government, even
if the Government is not made a party to the action.
However, if in addition to the recovery of possession, the
plaintiff also seeks the recovery of damages or rentals
which would thereby result in a financial liability to the
873
Government, the action cannot be maintained under the

rule of non-suability of the S t a t e without its consent
(Tumbaga vs. Vasquez, et al., 99 Phil. 1051 fUnrep.J).
7. The only issue involved in ejectment proceedings
is as to who is entitled to the physical or material possession
of the premises, t h a t is, possession de facto and not
possession de jure. Issues as to the right of possession or
onwership are not involved in the action and evidence
thereon is not admissible, except only for the purpose of
determining the issue of possession, such as by proving
t h e e x t e n t a n d c h a r a c t e r of t h e possession claimed
(Pitargue vs. Sorilla, 92 Phil. 5; see Sec. 16). Hence, it
was held that the mere fact that the pleadings raise the
issue of ownership will not divest the inferior court of its
jurisdiction, except where the issue of ownership is so
necessarily involved t h a t the issue of physical possession
cannot be d e t e r m i n e d without resolving the issue of
onwership (Luna, Inc. vs. Nable, 67 Phil. 340) in which
case the inferior court loses jurisdiction (Ganadin vs.
Ramos, L-23547, Sept. 11, 1980). That exception was,
however, removed and the rule modified by B.P. Blg. 129
which provides t h a t in ejectment proceedings where the
question of possession cannot be resolved without deciding
the issue of ownership, all inferior courts have the power
to resolve the issue of ownership but only to determine
the issue of possession (Sec. 33[2], changing the rule in
Sec. 3[c], R.A. 5967, which was then applicable to City
Courts).
8. Sec. 2 applies only to unlawful d e t a i n e r and

provides for the necessity of prior written demand. The
mere failure to pay the rent or to comply with the terms of
the lease does not ipso facto render defendant's possession
illegal (Canaynay vs. Sarmiento, 79 Phil. 36; Rickards
vs. Gonzales, infra).
a. The demand required and contemplated in Sec. 2
is a demand for the defendant to pay rentals due or to
874
UNLAWFUL DETAINER
comply with the conditions of the lease, and not only a

demand to vacate the premises; and where the defendant
does not comply with said demand within the periods
provided by Sec. 2, then his possession becomes unlawful
(Zobel vs. Abreu, 78 Phil. 343). C o n s e q u e n t l y , both
demands - to pay rent and to vacate - are necessary to
m a k e t h e lessee a deforciant in o r d e r t h a t an eject-
ment suit may be filed (Casilan vs. Tomassi, L-16574,
Feb. 28, 1964; Rickards vs. Gonzales, 109 Phil. 423;
Dikit vs. Ycasiano, ante), and the fact of such demands
must be alleged in the complaint, otherwise the inferior
court cannot acquire jurisdiction over the case (Casilan
vs. Tomassi, supra). A notice giving t h e lessee t h e
alternative either to pay the rental or vacate the premises
does not comply with Sec. 2 of this Rule (Vda. de Murga
vs. Chan, L-24680, Oct. 7, 1968).
The demand does not have to specifically use the word
"vacate." It is sufficient t h a t the letter to the occupants
puts him on notice to move out if he does not comply with
the t e r m s of the lease contract (Golden Gate Realty Corp.
vs. IAC, et al., G.R. No. 74289, July 31, 1987).
b. Even if the lease contract provides for the period
within which the rentals should be periodically paid, and,
in civil law, demand under such circumstances is no longer
required in order t h a t the obligor may be in default, it is
submitted t h a t for purposes of bringing an ejectment suit
the prior demand required in Sec. 2 must be given, despite
the stipulated date for payment in the contract. Such
demand is a jurisdictional requisite and the demand should
not only be for the payment of the rentals in a r r e a r s but
also for the occupant to vacate the premises. Furthermore,
the one-year period for the institution of the ejectment
suit is reckoned from the date when such demand, which
is generally required to be in writing, is not complied with.
c. The one-year period for bringing an ejectment suit
in u n l a w f u l d e t a i n e r is c o u n t e d from t h e t i m e t h e
d e f e n d a n t failed to pay t h e r e n t or comply with t h e
875
contract after demand therefor, that is, after the expiration

of the 5-day or 15-day periods provided in Sec. 2 (see Cruz
vs. Atenacio, 105 Phil. 1257 [Unrep.J). If several demands
were made, the one-year period is counted from the
last demand letter received by the defendant (Sy Oh
vs. Garcia, L-29328, June 30, 1969; Lim Chi vs. Garcia,
L-29589, June 30, 1969), unless the subsequent demands
were merely in the nature of reminders of the original
demand, in which case the one-year period is counted
from the first demand (Desbarats vs. Laureano, L-21875,
Sept. 27, 1966).
d. Prior demand in unlawful detainer actions is not
required: (1) where the purpose of the action is to terminate
the lease by reason of the expiry of its term and is not
for failure to pay rentals or comply with the terms of
the lease contract (De Santos vs. Vivas, 96 Phil. 538);
(2) when the purpose of the suit is not for ejectment but
for the enforcement of the terms of the contract (Guanson
vs. Ban, 77 Phil. 7); or (3) when the defendant is not a
tenant but a mere intruder (id.).
However, P.D. 20, dated October 12, 1972, suspended
the provisions of Art. 1673, Par. (1), of the Civil Code
which provides for ejectment "(w)hen the period agreed
upon, or that which is fixed for the duration of leases under
Arts. 1682 and 1687, has expired;" but, subsequently, Sec.
6 of B.P. Blg. 25 provided for that suspension only with
respect to residential units and only when the lease is not
for a specific period. Since only Art. 1673 was suspended,
the determination of the period of a lease agreement can
still be made in accordance with Art. 1687 (Rivera, et al.
vs. Florendo, et al., G.R. No. 60066, July 31, 1986).
The present rule is that a lease contract on a month-
to-month basis provides for a definite period and may be
terminated at the end of any month, hence by the failure
of defendant to pay the rental, the lease contract is deemed
terminated and may be so terminated by the plaintiff
without the necessity of prior demand (Lesaca vs. Cuevas,
876
UNLAWFUL DETAINER
et al, L-48419, Oct. 27, 1983; Santos, vs. CA, et al., G.R.
No. 60310, Mar. 27, 1984; Dionio vs. IAC, et al.,
G.R. No. 63698, Jan. 12, 1987). This applies to verbal
contracts on a month-to-month basis (Zablan vs. CA, et
al, G.R. No. 57844, Sept. 30, 1987; Miranda vs. Ortiz, et
al, G.R. No. 59783, Dec. 1, 1987).
9. Where forcible entry was made through stealth,
t h e one-year period should be counted from the time
the plaintiff learned thereof (Vda. de Prieto vs. Reyes,
L-21470, June 23, 1965; City of Manila vs. Garcia,
et al, L-26053, Feb. 21, 1967; Elane vs. CA, et al,
G.R. No. 80638, April 26, 1989).
Where defendant's e n t r y upon t h e land was with
p l a i n t i f f s t o l e r a n c e r i g h t from t h e d a t e a n d fact of
entry, unlawful detainer proceedings may be instituted
within one year from the demand on him to vacate as there
is an implied promise on his part to vacate upon demand
(Yu vs. De Lara, L-10684, Nov. 30, 1962). The s t a t u s of
such a defendant is analogous to t h a t of a t e n a n t or lessee,
the t e r m of whose lease has expired but whose occupancy
is c o n t i n u e d by t h e tolerance of the lessor (Vda. de
Cachuela vs. Francisco, L-31985, June 25, 1980). The
same rule applies where the defendant purchased the
house of the former lessee, who was already in a r r e a r s in
t h e p a y m e n t of r e n t a l s , and t h e r e a f t e r occupied t h e
premises without a new lease contract with the landowner
(Dakudao, et al. vs. Consolacion, et al, G.R. No. 54753,
June 24, 1973; Peran vs. Presiding Judge, etc.,
G.R. No. 57259, Oct. 13, 1983).
10. Where the complaint fails to specifically aver facts
constitutive of forcible entry or unlawful detainer as where
it does not state how entry was effected or how and when
dispossession started, the action should either be accion
publiciana or accion reivindicatoria in the Court of First
Instance [now, the Regional Trial Court] (Sarona, et al
vs. Villegas, et al, supra; Daveza, et al. vs. Montecillo,
877
et al., L-23842, Mar. 28, 1969; see Banayos vs. Susana

Realty, Inc., supra).
11. Also, where the defendant refuses to vacate the
land on the ground that he is the lessee of the plaintiffs
predecessor-in-interest, the court will have to determine
who has the better right of possession and/or whether
said antecedent lease contract is binding on the plaintiff;
hence, the case is an accion publiciana and within the
jurisdiction of t h e Regional Trial Court even if said
action was brought within one year from demand on the
defendant to vacate the premises (Bernabe vs. Dayrit, et
al., G.R. No. 58399, Oct. 27, 1983).
12. After the expiry of the term of the lease, the
possession of the lessee becomes unlawful and the lessor
may bring suit for his ejectment even without prior notice.
However, if no notice has been given and the lessee
continues in the possession of the premises with the
acquiescence of the lessor for 15 days after the expiry of
the term, an implied new lease is deemed to have been
made for the period or time provided for in the Civil Code
(Art. 1670). In the case of rural land, the implied new
lease is for a period necessary for the gathering of the
fruits which the estate may yield in one year or which
it may yield once; and, in the case of urban lands, for a
period as may be fixed by the court depending on the
length of prior occupation thereof by the lessee (Art. 1687).
This is known as the principle of tacita reconduccion
and constitutes a defense to an unlawful detainer suit
(Co Tiamco vs. Diaz, 75 Phil. 672). For the distinction
between u r b a n and r u r a l lands, see Fabia, et al. vs.
Intermediate Appellate Court et al. (G.R. No. 66101,
Nov. 21, 1984).
13. Where the tenant filed an action in the Regional

Trial Court to compel the landlord to agree to an extension
of the lease, and thereafter the landlord brought an
unlawful detainer suit in the lower court, the case in the
878
UNLAWFUL DETAINER
Regional Trial Court should be dismissed on the ground

of litis pendentia which applies even if said action was
filed first. The issues raised in said action could very well
and should properly be threshed out in the ejectment case
(Rosales vs. CFIof Lanao del Norte, et al., G.R. No. 62577,
Sept. 21, 1987).
14. It is t r u e t h a t under Sec. 2, Rule 70, in ejectment

proceedings, the demand to vacate shall be made on the
defendant personally, or by written notice of such demand
upon a person found on the premises, or by posting such
notice on the premises if no person can be found thereon.
However, said notice to vacate may also be served by
registered mail and constitutes substantial compliance with
the prescribed modes of service. Ejectment actions are
summary in n a t u r e because they involve a disturbance of
the social order which must be abated as promptly as
possible without undue reliance on procedural rules which
only cause delays (Co Keng Kian vs. CA, et al., G.R. No.
75676, Aug. 29, 1990). As revised, the word "personally"
has now been eliminated from the mode of making demand
on the defendant under Sec. 2 of this Rule.
15. The Municipal Trial Court has jurisdiction to try

the ejectment case while the plaintiffs action for annulment
of the mortgage and recovery of ownership of the same
property from the defendant is pending in the Regional
Trial Court. While there may be identity of parties and
subject-matter in the two actions, the issues involved and
the reliefs prayed for are not the same. Also, it is incorrect
to say t h a t the question of ownership is involved in the
ejectment suit just because the plaintiff alleged in her
complaint t h a t she was the original owner of the subject
property. On the contrary, it only bolsters the conclusion
t h a t the ejectment case does not involve the question of
title as this is the subject of the case in the Regional Trial
Court. Accordingly, the Rule on Summary Procedure
applies because the ejectment case involves only t h e
879
restoration of the physical possession of the subject land

and not its ownership (Joven vs. CA, et al., G.R. No.
80739, Aug. 20, 1992).
See the related discussion on this matter in Notes 3
and 4 under Sec. 14 of this Rule.
Sec. 3. Summary procedure. — E x c e p t in cases

covered by the agricultural t e n a n c y laws or when
the law o t h e r w i s e expressly provides, all actions for
forcible entry and unlawful detainer, irrespective
of the a m o u n t of d a m a g e s or unpaid rentals sought
to be recovered, shall be g o v e r n e d by the summary
procedure provided in this Rule, (n)
NOTE
1. With t h e a d o p t i o n of t h e Rule on S u m m a r y
Procedure, effective August 1, 1983, which applies, inter
alia, to forcible entry and unlawful detainer cases but with
limits on the amount involved, ejectment cases involving
reliefs within the jurisdictional amount were governed by
said rule on summary procedure, but those exceeding that
jurisdictional amount were covered by this Rule.
Effective November 15, 1991, the Revised Rule on
Summary Procedure applied to all cases of forcible entry
and unlawful d e t a i n e r irrespective of the amount of
d a m a g e s or u n p a i d r e n t a l s s o u g h t to be recovered.
Consequently, the rules therein on summary procedure
were adopted for the special civil action of ejectment under
this Rule, which from the outset had always been intended
to provide for a summary proceeding but which fell short
of its objective. Parenthetically, the aforementioned
Revised Rule on Summary Procedure still applies to all
other civil cases where the plaintiffs claim does not exceed
P 10,000, exclusive of interest and costs.
Excluded from t h i s p r e s e n t a m e n d e d Rule are
ejectment cases covered by the agricultural tenancy laws
880
RULE 70 FORCIBLE ENTRY AND SECS. 4-7
UNLAWFUL DETAINER
or such as may otherwise be expressly provided by law,

the procedure wherein shall be in accordance with their
governing s t a t u t e s .
Sec. 4. Pleadings allowed. — The only p l e a d i n g s

a l l o w e d to be filed are t h e c o m p l a i n t , c o m p u l s o r y
counterclaim and cross-claim pleaded in the
a n s w e r , a n d t h e a n s w e r t h e r e t o . All p l e a d i n g s
shall be verified. (3a, RSP)
Sec. 5. Action on complaint. — T h e c o u r t m a y ,

from an e x a m i n a t i o n of the allegations in the
c o m p l a i n t a n d s u c h e v i d e n c e a s may b e a t t a c h e d
thereto, dismiss the case outright on any of the
g r o u n d s for t h e d i s m i s s a l of a civil a c t i o n w h i c h are
a p p a r e n t t h e r e i n . I f n o g r o u n d for d i s m i s s a l i s
found, it shall f o r t h w i t h i s s u e s u m m o n s , (n)
Sec. 6. Answer. — W i t h i n t e n (10) d a y s f r o m

s e r v i c e o f s u m m o n s , t h e d e f e n d a n t s h a l l file h i s
a n s w e r to t h e c o m p l a i n t and s e r v e a copy t h e r e o f
on t h e plaintiff. Affirmative and n e g a t i v e d e f e n s e s
not p l e a d e d t h e r e i n shall b e d e e m e d w a i v e d , e x c e p t
lack of j u r i s d i c t i o n o v e r t h e subject-matter. Cross-
c l a i m s and c o m p u l s o r y c o u n t e r c l a i m s not a s s e r t e d
in the a n s w e r shall be considered barred. The
answer to counterclaims or cross-claims shall be
s e r v e d and filed w i t h i n t e n (10) d a y s from s e r v i c e of
t h e a n s w e r in w h i c h t h e y are pleaded. (5, RSP)
Sec. 7. Effect of failure to answer. — S h o u l d t h e

d e f e n d a n t fail to a n s w e r the c o m p l a i n t w i t h i n t h e
period above provided, t h e court, motu proprio or
on m o t i o n of t h e plaintiff, shall render j u d g m e n t as
may be warranted by the facts alleged in the
c o m p l a i n t and limited to what is prayed for t h e r e i n .
The c o u r t may in its discretion reduce t h e a m o u n t
881
of d a m a g e s and attorney's fees claimed for being

excessive or otherwise unconscionable, without
prejudice to the applicability of section 3(c), Rule 9
if there are t w o or more defendants. (6, RSP)
Sec. 8. Preliminary conference; appearance of

parties. — Not later than thirty (30) days after the
last a n s w e r is filed, a preliminary conference shall
be held. The provisions of Rule 18 on pre-trial shall
be applicable to t h e preliminary conference unless
i n c o n s i s t e n t with the provisions of this Rule.
The failure of t h e p l a i n t i f f to a p p e a r in the
p r e l i m i n a r y c o n f e r e n c e s h a l l b e c a u s e for t h e
d i s m i s s a l o f h i s c o m p l a i n t . The d e f e n d a n t who
a p p e a r s in t h e a b s e n c e of t h e p l a i n t i f f s h a l l be
entitled to judgment on his counterclaim in
a c c o r d a n c e w i t h t h e next p r e c e d i n g section. All
cross-claims shall be dismissed. (7, RSP)
If a s o l e d e f e n d a n t s h a l l fail to a p p e a r , the
plaintiff shall be entitled to judgment in accordance
with the n e x t p r e c e d i n g section. This procedure
shall not apply where one of two or more defendants
s u e d u n d e r a c o m m o n c a u s e of a c t i o n w h o had
p l e a d e d a c o m m o n d e f e n s e s h a l l a p p e a r at the
preliminary conference.
No p o s t p o n e m e n t of the preliminary conference
s h a l l b e g r a n t e d e x c e p t for h i g h l y m e r i t o r i o u s
grounds and w i t h o u t prejudice to such sanctions
as the court in the exercise of sound discretion may
impose on the movant, (n)
Sec. 9. Record of preliminary conference. —Within

five (6) days after the termination of the preliminary
conference, the court shall issue an order stating
the m a t t e r s t a k e n up t h e r e i n , i n c l u d i n g but not
limited to:
882
RULE 70 FORCIBLE ENTRY A N D SECS. 10-11
UNLAWFUL DETAINER
1. Whether the parties have arrived at an

a m i c a b l e s e t t l e m e n t , and if so, t h e t e r m s thereof;
2. The s t i p u l a t i o n s or a d m i s s i o n s e n t e r e d i n t o
by t h e p a r t i e s ;
3. W h e t h e r , on t h e basis of t h e p l e a d i n g s a n d
t h e s t i p u l a t i o n s and a d m i s s i o n s made by the parties,
judgment may be rendered without the need of
further p r o c e e d i n g s , i n w h i c h e v e n t t h e j u d g m e n t
s h a l l b e r e n d e r e d w i t h i n t h i r t y (30) d a y s f r o m
i s s u a n c e o f t h e order;
4. A c l e a r s p e c i f i c a t i o n of material facts w h i c h
r e m a i n c o n t r o v e r t e d ; and
5. S u c h o t h e r m a t t e r s i n t e n d e d to e x p e d i t e t h e
d i s p o s i t i o n of t h e c a s e . (8, RSP)
Sec. 10. Submission of affidavits and position

papers. — Within t e n (10) d a y s from r e c e i p t of t h e
order mentioned in the next preceding section, the
p a r t i e s shall s u b m i t t h e affidavits of their w i t n e s s e s
a n d o t h e r e v i d e n c e o n t h e factual i s s u e s defined i n
the order, together with their position papers
s e t t i n g forth t h e law and t h e facts relied u p o n by
t h e m . (9, RSP)
Sec. 11. Period for rendition of judgment. — Within

thirty (30) d a y s after receipt of t h e affidavits and
p o s i t i o n p a p e r s , or t h e e x p i r a t i o n of t h e period for
filing t h e s a m e , t h e court shall r e n d e r j u d g m e n t .
H o w e v e r , s h o u l d t h e court find it n e c e s s a r y to
clarify c e r t a i n material facts, it may, d u r i n g the said
period, i s s u e an order specifying the m a t t e r s to be
clarified, and require the parties to submit affidavits
o r o t h e r e v i d e n c e o n t h e said m a t t e r s w i t h i n t e n
(10) d a y s from receipt of said order. J u d g m e n t shall
be r e n d e r e d w i t h i n fifteen (15) days after the receipt
883
of the last affidavit or the expiration of the period

for filing t h e s a m e .
The court shall not resort to the foregoing
p r o c e d u r e j u s t t o g a i n t i m e for t h e r e n d i t i o n o f the
j u d g m e n t , (n)
S e c . 1 2 . Referral for conciliation. — Cases

r e q u i r i n g referral for c o n c i l i a t i o n , w h e r e t h e r e i s
no showing of compliance with such requirement,
shall be dismissed without prejudice, and may be
revived only after that r e q u i r e m e n t shall have been
c o m p l i e d with. (18a, RSP)
S e c . 13. Prohibited pleadings and motions. — T h e

following petitions, motions, or pleadings shall not
be allowed:
1. Motion to dismiss the complaint except on
the ground of lack of jurisdiction over the subject
m a t t e r , o r f a i l u r e t o c o m p l y w i t h s e c t i o n 12;
2. M o t i o n for a bill of p a r t i c u l a r s ;
3. M o t i o n for n e w trial, or for r e c o n s i d e r a t i o n
of a j u d g m e n t , or for r e o p e n i n g of trial;
4. P e t i t i o n for relief f r o m j u d g m e n t ;
5. M o t i o n for e x t e n s i o n of t i m e to file
pleadings, affidavits or any other paper;
6. Memoranda;
7. P e t i t i o n for c e r t i o r a r i , m a n d a m u s , or
prohibition against any interlocutory order issued
by the court;
8. Motion to declare the defendant in default;
9. D i l a t o r y m o t i o n s for p o s t p o n e m e n t ;
10. Reply;
11. Third-party c o m p l a i n t s ;
884
UNLAWFUL DETAINER
12. I n t e r v e n t i o n s . (19a, RSP)
Sec. 14. Affidavits. — The affidavits r e q u i r e d to

be s u b m i t t e d u n d e r t h i s Rule shall state o n l y facts
o f d i r e c t p e r s o n a l k n o w l e d g e o f t h e affiants w h i c h
are a d m i s s i b l e i n e v i d e n c e , a n d s h a l l s h o w t h e i r
c o m p e t e n c e t o testify t o t h e m a t t e r s s t a t e d t h e r e i n .
A v i o l a t i o n of t h i s r e q u i r e m e n t may subject t h e
party or the counsel who submits the same to
d i s c i p l i n a r y a c t i o n , and shall be c a u s e to e x p u n g e
t h e i n a d m i s s i b l e affidavit or p o r t i o n t h e r e o f from
t h e r e c o r d . (20, RSP)
NOTES
1. See Notes 7 to 10 under Sec. 2 of Rule 5, and Notes

1, 2 and 6 to 8 under Sec. 4 of Rule 7.
2. As earlier explained, with the adoption of the
Revised Rule on Summary Procedure applicable to all cases
of forcible entry and unlawful detainer except those under
the agricultural tenancy laws, the same supplanted and
is now the s u b s t a n t i a l text of the present Rule 70 on
ejectment, in lieu of the former provisions of this special
civil action except those which have been retained.
T h e s u m m a r y n a t u r e a n d p u r p o s e of e j e c t m e n t
proceedings are more fully subserved by the new provisions
under which the trial court no longer conducts a hearing
for the reception of testimonial evidence. The adjudication
of ejectment cases, as well as those other cases covered by
the aforesaid summary procedure rule, is done merely on
the basis of affidavits and such position papers as may be
required.
A mere reading of the summary rules reveals the basic
objective, t h r o u g h t h e p r o c e d u r a l r e q u i r e m e n t s and
prohibitions therein, to obviate dilatory practices and
unnecessary delay which have long been the bane of
885
RULE 70 R E M E D I A L LAW C O M P E N D I U M SECS. 12-U
ejectment proceedings. T h a t purpose is further com-

plemented by the En Banc Resolution of April 7, 1988 of
the Supreme Court which is inter alia directed against
unnecessary litigation and appeals in ejectment cases.
3. Before, and even after, the adoption of the Rules
on S u m m a r y P r o c e d u r e , t h e u s u a l q u e s t i o n raised,
whether unwittingly through error or intentionally for
delay, is the effect on the jurisdiction of the inferior court
in ejectment cases where the defendant interjects therein
an issue on the ownership of t h e realty involved by
claiming title thereto either in the same case or in an action
filed in the Regional Trial Court.
In Hilario, et al. vs. Court of Appeals, et al.
(G.R. No. 121865, Aug. 7, 1996), defendants claimed
that they never sold to the plaintiffs the lot from which
the former were being ejected by the latter, claiming that
what they executed was not a deed of sale but only a
mortgage contract. For resolution then was whether or
not the conflicting positions of the parties on the issue of
ownership could plausibly deprive the Municipal Trial
Court of jurisdiction over the case.
The Supreme Court ruled in the negative, pointing
out that under Sec. 33(2) of B.P. Blg. 129, the Interim
Rules and Guidelines implementing said law, the Revised
Rule on S u m m a r y P r o c e d u r e , a n d R.A. 7691 which
expanded the jurisdiction of the inferior courts, the
consistent rule is that said trial courts retain jurisdiction
over ejectment cases even if the question of possession
cannot be resolved without passing upon the issue of
ownership, with the caveat that in said case the issue of
ownership shall be resolved by the trial court for the sole
purpose of determining the issue of possession. The
a d j u d i c a t i o n m a d e t h e r e i n r e g a r d i n g t h e i s s u e of
ownership would merely be provisional and would not bar
or prejudice an action between the same parties involving
title to the land.
886
UNLAWFUL DETAINER
4. In this same case of Hilario, the Supreme Court

quoted the holding in Wilmon Auto Supply Corporation,
et al. vs. CA, et al. (G.R. No. 97637, April 10, 1992) which
catalogued the cases t h a t should not be regarded as pre-
judicial to an ejectment suit, to wit:
" 1 . Injunction suit i n s t i t u t e d in t h e RTC by
defendants in ejectment actions in the municipal trial
courts or other courts of the first level (Nacorda v.
Yatco, 17 SCRA 920 [1966]) do not abate the latter;
and neither do proceedings on consignation of rentals
(Lim Si v. Lim, 98 Phil. 865 [1956], citing Pue, et al.
v. Gonzales, 87 Phil. 81 [1950]).
2. An 'accion publiciana' does not suspend an
ejectment suit a g a i n s t the plaintiff in the former
(Ramirez v. Bleza, 106 SCRA 187 [1981]).
3. A 'writ of possession case' where ownership
is concededly the principal issue before the Regional
Trial Court does not preclude nor bar the execution
of the judgment in an unlawful detainer suit where
the only issue involved is the material possession or
p o s s e s s i o n de facto of t h e p r e m i s e s ( H e i r s of
F. Guballa, Sr. v. C.A., et al., etc., 168 SCRA 518
[1988]).
4. An action for quieting of title to property is
not a bar to an ejectment suit involving the same
property (Quimpo v. De la Victoria, 46 SCRA 139
[1972]).
5. Suits for specific performance with damages
do not affect ejectment actions (e.g., to compel
renewal of a lease contract) (Desamito v. Cuyegkeng,
18 SCRA 1184 [1966]; P a r d o de T a v e r a v.
Encarnacion, 22 SCRA 632 [1968]; Rosales v. CFI,
154 SCRA 153 [1987]; Commander Realty, Inc. v.
C.A., 161 SCRA 264 [1988]).
887
6. An action for reformation of instrument (e.g.,

from deed of absolute sale to one of sale with pacto de
retro, does not suspend an ejectment suit between the
same p a r t i e s ( J u d i t h v. Abragan, 66 SCRA 600
[1975]).
7. An action for reconveyance of property or
'accion reivindicatoria'also has no effect on ejectment
suits regarding the same property (Del Rosario v.
Jimenez, 8 SCRA 549 [1963]; Salinas v. Navarro, 126
SCRA 167; De la Cruz v. C.A., 133 SCRA 520 [1984];
Drilon v. Gaurana, 149 SCRA 352 [1987]; Ching v.
Malaya, 153 SCRA 412 [1987]; Philippine Feeds
Milling Co., Inc. v. C.A., 174 SCRA 108; Dante v.
Sison, 174 SCRA 517 [1989]; G u z m a n v. C.A.,
[annulment of sale and reconveyance], 177 SCRA 604
[1989]; Demamay v. C.A., 186 SCRA 608 [1990];
Leopoldo Sy v. C.A., et al. [annulment of sale and
reconveyance], G.R. No. 95818, Aug. 1991).
8. Neither do suits for annulment of sale, or title,
or document affecting property operate to abate
ejectment actions r e s p e c t i n g t h e same property
(Salinas v. Navarro [annulment of deed of sale with
assumption of mortgage and/or to declare the same
an equitable mortgage], 126 SCRA 167 [1983]; Ang
Ping v. RTC [annulment of sale and title], 154 SCRA
153 [1987]; Caparros v. C A . [annulment of title], 170
SCRA 758 [1989]; Dante v. Sison [annulment of sale
with damages], 174 SCRA 517; Galgala v. Benguet
Consolidated, Inc. [annulment of document], 177
SCRA 288 [1989])."
5. In Refugia, et al. vs. CA, et al. (G.R. No. 118284,
July 5, 1996), the Supreme Court also discussed in detail
the antecedents and developmental changes culminating
in the express mandate in Sec. 33(2) of B.P. Blg. 129 to
the effect that inferior courts have jurisdiction to resolve
the question of ownership where a determination thereof
888
UNLAWFUL DETAINER
is necessary for a proper and complete adjudication of the

issue of p o s s e s s i o n . It, however, laid down c e r t a i n
guidelines to be observed in the implementation of t h a t
legislative prescription, viz.:
(1) The primal rule is t h a t the principal issue
must be t h a t of possession, and t h a t ownership is
merely ancillary thereto, in which case the issue of
ownership may be resolved but only for the purpose
of determining the issue of possession.
(2) I t m u s t s u f f i c i e n t l y a p p e a r from t h e
allegations of the complaint t h a t what the plaintiff
r e a l l y a n d p r i m a r i l y s e e k s is t h e r e s t o r a t i o n of
possession.
(3) The inferior court cannot adjudicate on the
n a t u r e of ownership where the relationship of lessor
and lessee has been sufficiently established in the
ejectment case, unless it is duly proved t h a t there has
been a subsequent change in or termination of t h a t
relationship between the parties.
(4) The rule in forcible entry cases, but not in
unlawful detainer, is that a party who can prove prior
possession can recover such possession even against
the owner himself, until he is lawfully ejected by a
person having a better right, hence if prior possession
may be ascertained in some other way, the inferior
court cannot intrude into the issue of ownership.
(5) W h e r e t h e q u e s t i o n of who h a s p r i o r
p o s s e s s i o n h i n g e s on t h e issue of who t h e r e a l
owner is, or upon the determination of the validity
and interpretation of the document of title or any
other contract on which the claim of possession is
premised, the inferior court may resolve the issue of
ownership but any such pronouncement on ownership
is merely provisional and does not bar or prejudice
an action between the same parties involving title to
the land.
889
6. The Rule on Summary Procedure applies only to

cases filed before the Metropolitan Trial Courts and
Municipal Trial Courts, pursuant to Section 36 of B.P. Blg.
129. Summary procedure has no application before the
Regional Trial Courts. Hence, when the respondents
appealed the decision of the Municipal Trial Court to the
Regional Trial Court, the applicable rules are those of the
latter court (Jakihaca vs. Aquino, et al., G.R. No. 83982,
Jan. 12, 1990). Thus, while a motion for reconsideration
of t h e j u d g m e n t of t h e M u n i c i p a l T r i a l Court is a
p r o h i b i t e d p l e a d i n g u n d e r t h e Rule o n S u m m a r y
Procedure, a motion for reconsideration may validly be
filed from a decision of the Regional Trial Court in the
exercise of its appellate jurisdiction over decisions of the
inferior courts in ejectment cases (Refugia, et al. vs. CA,
et al., ante).
Sec. 16. Preliminary injunction. — The court may

grant preliminary injunction, in a c c o r d a n c e with
the p r o v i s i o n s of Rule 58 hereof, to p r e v e n t the
d e f e n d a n t from c o m m i t t i n g a c t s of d i s p o s s e s s i o n
against t h e plaintiff.
A p o s s e s s o r deprived of h i s p o s s e s s i o n through
forcible entry or unlawful detainer may, w i t h i n five
(5) d a y s from t h e filing of the complaint, present a
motion in t h e action for forcible entry or unlawful
d e t a i n e r for the i s s u a n c e of a writ of preliminary
mandatory injunction to restore him in his
possession. The court shall decide the motion
within thirty (30) days from the filing thereof. (3a)
Sec. 20. Preliminary mandatory injunction in case

of appeal. — Upon motion of the plaintiff within ten
(10) d a y s from the perfection of the appeal to the
Regional Trial Court, the latter may issue a writ of
p r e l i m i n a r y m a n d a t o r y i n j u n c t i o n to restore the
plaintiff in p o s s e s s i o n if the court is satisfied that
890
RULE 70 FORCIBLE ENTRY AND S E C S . 15, 2 0
UNLAWFUL DETAINER
t h e d e f e n d a n t ' s a p p e a l is frivolous or dilatory, or

t h a t t h e a p p e a l o f t h e p l a i n t i f f i s prima facie
m e r i t o r i o u s . (9a)
NOTES
1. For correlation, Secs. 15 and 20, both being on

the m a t t e r of preliminary injunction in ejectment cases,
are discussed jointly.
2. Under the Civil Code and the 1964 Rules of Court,
preliminary mandatory injunction was available at the
s t a r t of the action but only in forcible entry cases (see
Art. 539, Civil Code; cf. Sec. 88, R.A. 296 which also spoke
only of forcible entry). On appeal, provided the conditions
in the former Sec. 9 of this Rule were present, preliminary
m a n d a t o r y injunction was available only in unlawful
detainer cases, as said Sec. 9 referred to a lessor and a
lessee (see Art. 1674, Civil Code; Dayao vs. Shell Co. of
the Phil., Ltd., L-32475, April 30, 1980).
T h a t u n c e r t a i n s t a t e of affairs was sought to be
remedied by Sec. 33(1) of B.P. Blg. 129 (see notes thereon
in t h e p r e l i m i n a r y p o r t i o n of t h i s volume) to m a k e
preliminary injunction available in both forms of ejectment
suits.
This amended section makes the rule more specific
and clear by providing that preliminary mandatory
injunction shall be available at the s t a r t of the action,
and under the conditions therein, in both forcible entry
and unlawful d e t a i n e r cases. Such preliminary man-
d a t o r y injunction is also available on a p p e a l to t h e
Regional Trial Court and there is no distinction as to the
type of ejectment case involved.
P r e l i m i n a r y preventive injunction is available in
either case as the first paragraph of Section 15 makes the
provisions of Rule 58 applicable to this special civil action.
891
Sec. 16. Resolving defense of ownership. — When

the defendant raises t h e defense of o w n e r s h i p in his
pleadings and the q u e s t i o n of p o s s e s s i o n cannot
be resolved without deciding the issue of ownership,
t h e i s s u e of o w n e r s h i p s h a l l be r e s o l v e d only to
d e t e r m i n e the issue of p o s s e s s i o n . (4a)
NOTES
1. Ejectment suits under this Rule essentially involve

the issue of physical or material possession over the real
property subject of the action. This amended section,
which is based on t h e provisions of Sec. 33(2), B.P. Blg. 129, contemplates that (1) the defendant resists his
ejectment from the disputed premises not by claiming only
a right of physical possession but also the ownership
thereof; and (2) the question of possession can be resolved
only by deciding the issue of ownership. The solution
under this section is to resolve the issue of ownership but
only to determine the issue of possession. This must be so
because the issue of ownership cannot be definitively
decided in this special civil action, and the trial court does
not have the jurisdiction to decide the issue of title to the
land. However, since the defendant anchors the legality
of his material possession of the property on a claim of
title, the court can, at least prima facie, determine the
plausibility or validity of his basic claim on which he
justifies his right to possess. Otherwise, the ends of justice
may easily be trifled with by the defendant through the
simple expedient of claiming title to the property, no matter
how outrageous, and then challenging the jurisdiction of
the trial court in order to delay the disposition of a
summary proceeding.
2. This is decidedly an i m p r o v e m e n t over the

provisions of the former Sec. 4 of this Rule to the effect
t h a t evidence of title to real property involved in an
ejectment case may be received solely for the purpose of
892
RULE 70 FORCIBLE ENTRY AND S E C . 16
UNLAWFUL DETAINER
determining the character and extent of possession and

damages for detention. Nonetheless, despite such seeming
limitations, the former rule also served its purpose as
shown in the following doctrines handed down p u r s u a n t
thereto.
3. A l l e g a t i o n s of o w n e r s h i p a r e not r e q u i r e d in
ejectment suits as the only issue is physical possession.
However, such allegations either by the plaintiff or the
defendant do not oust the court of jurisdiction provided
the purpose thereof, and the reception of evidence thereon,
is only to prove the character and extent of possession
and the damages for the detention (Subano vs. Vallecer,
105 Phil. 1264 fUnrep.J). Formerly, Sec. 31(c), R.A. 5967,
granted jurisdiction to the then City Courts to decide the
questions of physical possession "in conjunction with" the
issue of ownership in the same action (cf. Pelaez vs. Reyes,
L-48168, Aug. 31, 1978), but this has been eliminated by
B.P. Blg. 129. See note 7 under Sec. 2 of this Rule.
4. Thus, where the defendant has entered upon a

portion of the property of the plaintiff, the l a t t e r can
introduce in evidence his muniments of title to show t h a t
said portion is embraced within his property which he
possesses, as his purpose is merely to show the extent of
his possession consequent to his ownership of the entire
parcel of land (see Mediran vs. Villanueva, 37 Phil. 752).
Evidence of such title may also be introduced to show t h a t
the plaintiff is the possessor of the land by reason of his
ownership thereof, or as the lawful t e n a n t or lessee of the
owner, or p u r s u a n t to a right contingent upon the fact of
ownership of another, as, in said cases, the title is being
introduced just to show in what character or under what
right the plaintiff is in possession of the premises.
5. Where the issues in the inferior court do not only
raise the question of the possession of the lot but also the
rights of the parties to the building constructed thereon
and for the recovery thereof, jurisdiction is vested in the
893
Regional Trial Court as it is not one for ejectment but

for specific performance (Chua Peng Hian vs. CA, et al.,
G.R. No. 60015, Dec. 19, 1983). Where, however, the
defendant has built a substantial building on plaintiffs
land and there is no dispute as to the ownership of either
said land or building by the parties, the inferior court does
not lose jurisdiction over the ejectment case and can
adjudicate the rights of the parties thereover in accordance
with the Civil Code (Alvir vs. Vera, et al., L-39338,
July 16, 1984; De la Santa vs. CA, et al., L-30560 and
L-31078, Nov. 18, 1985).
Sec. 17. Judgment. — If after trial the court finds

t h a t t h e a l l e g a t i o n s of the c o m p l a i n t are true, it
shall render j u d g m e n t in favor of t h e plaintiff for
the restitution of the premises, the s u m justly due
as arrears of rent or as r e a s o n a b l e compensation
for t h e u s e a n d o c c u p a t i o n o f t h e p r e m i s e s ,
a t t o r n e y ' s f e e s a n d c o s t s . I f i t f i n d s t h a t said
allegations are not true, it shall render judgment
for t h e d e f e n d a n t t o r e c o v e r h i s c o s t s . I f a
c o u n t e r c l a i m is established, the court shall render
j u d g m e n t for t h e s u m found in arrears from either
party and award costs as justice requires. (6a)
Sec. 18. Judgment conclusive only on possession; not

conclusive in action involving title or ownership. — The
j u d g m e n t s rendered in an action for forcible entry
or detainer shall be conclusive with respect to the
p o s s e s s i o n only and shall in no w i s e bind the title
or affect the ownership of the land or building. Such
j u d g m e n t shall not bar an action b e t w e e n the same
parties r e s p e c t i n g title to the land or building.
The j u d g m e n t or final order shall be appealable
to the appropriate Regional Trial Court which shall
decide the same on the basis of t h e entire record
of the proceedings had in the court of origin and
894
UNLAWFUL DETAINER
s u c h m e m o r a n d a and/or briefs as may be s u b m i t t e d

b y t h e p a r t i e s o r r e q u i r e d b y t h e R e g i o n a l Trial
Court. (7a)
NOTES
1. Sec. 17, with some s t r u c t u r a l r e a r r a n g e m e n t ,

remains substantially the same as the former Sec. 6 of
this Rule.
2. Sec. 18 is virtually a reproduction of the former

Sec. 7 of this Rule, but with two major changes. From
the first p a r a g r a p h , t h a t portion affecting the rule on
conclusiveness of judgment has been deleted, for reasons
hereafter discussed in Note 8 hereof. Also, a second
p a r a g r a p h h a s been added, spelling out t h e specific
appellate procedure and requirements for the elevation of
the case to the Regional Trial Court. This also has the
effect of r e m i n d i n g all c o n c e r n e d t h a t t h e a p p e a l ,
regardless of the issues involved should always be brought
to the appropriate Regional Trial Court.
3. Formerly, the City Courts, but not the ordinary

municipal courts, could actually determine the issue of
title where such issue is raised in the proceedings in an
ejectment suit before it (Sec. 3[c], R.A. 5967). Appeal
from the decision therein could be taken to the Court of
Appeals (Pelaez us. Reyes, L-48168, Aug. 31, 1978) within
t h e t h e n 30-day r e g l e m e n t a r y period u n d e r Sec. 3 ,
Rule 41 (Contreras us. Villaraza, et al., G.R. No. 53372,
Aug. 21, 1980; Nogoy vs. Mendoza, G.R. Nos. 54324-28,
Nou. 19, 1980). Note, however, the important changes
effected by B.P. Blg. 129, as hereinbefore discussed.
4. In ejectment cases, the inferior court can adjudi-
cate and award actual damages beyond the jurisdictional
limit in o r d i n a r y civil actions, as t h e a m o u n t of t h e
monetary award is immaterial to its jurisdiction, the
restoration of possession being the primary relief sought
895
and to be granted. This is now an explicit rationale of the

summary procedure adopted in this Rule.
However, damages other than reasonable rentals or
fair rental value are not recoverable by plaintiff. Reason-
able attorney's fees may be allowed if the provisions of
Art. 2208, Civil Code, are applicable (De Laureano vs.
Adil, supra; Ramirez vs. Sy Chit, L-22032, Dec. 26, 1967;
Reyes vs. CA, et al., L-28466, Mar. 27, 1971; Baens vs.
CA, et al, G.R. No. 57091, Nov. 23, 1983). It may also be
noted that while Sec. 1 of this Rule speaks of "damages,"
Sec. 6 (now, Sec. 17) thereof uses the phrase "rent or as
reasonable compensation for the use and occupation of
the premises." It has been held that this rule does not
apply against a counterclaim of the defendant wherein
moral damages may be awarded by the inferior court
provided that the award should not exceed the amount
within the original jurisdiction of the inferior court (see
Agustin vs. Bacalan, et al, L-46000, Mar. 18, 1985).
5. The plaintiff, in ejectment cases, is entitled to

damages caused by his loss of the use and possession of
the premises, but not for damages caused on the land or
b u i l d i n g , which l a t t e r i t e m s of d a m a g e s should be
recovered by plaintiff, if he is the owner, in an ordinary
action (Santos vs. Santiago, 38 Phil 575). However, it
has been held t h a t plaintiff can recover from defendant
liquidated damages stipulated in the lease contract (Gozon
vs. Vda. de Barrameda, L-17473, June 30, 1964).
6. An action for ejectment is not abated by the
d e a t h of t h e d e f e n d a n t as t h e question of d a m a g e s
must be adjudicated (Tanhueco vs. Aguilar L-30369,
May 29, 1970).
7. The rules of res judicata and conclusiveness of
judgment apply in ejectment suits, but subject to the
qualification that the judgment therein is conclusive only
with respect to the issue of possession of the premises and
896
UNLAWFUL DETAINER
not with respect to ownership; but it is conclusive with

respect to the right of possession under and by virtue of a
contract the existence of which has been proved in said
ejectment suit (see Penalosa vs. Tuason, 22 Phil. 303).
8. It will be recalled t h a t u n d e r Sec. 49(c) (now,
Sec. 47[c]) of Rule 39 which e n u n c i a t e s t h e r u l e of
conclusiveness of judgment, the effect of a judgment on a
s u b s e q u e n t case b e t w e e n t h e s a m e p a r t i e s b u t on a
different cause of action is that such judgment is conclusive
upon all m a t t e r s t h a t have been controverted and directly
adjudged or determined therein. The former Sec. 7 of
t h i s Rule was an exception to such doctrine since it
restricted the binding effect of a judgment in an ejectment
case only to the issue of material possession and, at the
same time, declared t h a t it shall not in any manner affect
the title to or the ownership of the property involved.
Thus, if a judgment in a forcible entry case held t h a t the
defendant had always been in possession of the property,
such a finding had no binding effect in a subsequent case
between the same parties involving the issue of ownership
of the same property. Since the second action is based
on a different cause of action, the rule of conclusiveness
of judgment could have applied but, although the issue
of possession had been directly adjudged in the first
case, said former Sec. 7 of this Rule provided t h a t such a
finding shall not be held conclusive of the facts therein
found insofar as the second case on title is concerned
(Penalosa vs. Tuason, supra; Cordovis vs. Obias, L-24080,
April 26, 1968).
I t w a s accordingly decided t h a t such exceptive
provision of the then Sec. 7 of this Rule on the matter of
the issue of possession should be eliminated to make it
consistent with the accepted doctrine of conclusiveness of
judgment. There is no reason why the issue of possession
which was duly litigated before and decided with finality
by a municipal trial court in a full-blown proceeding in an
897
RULE 70 R E M E D I A L LAW C O M P E N D I U M S E C 8 . 17-18
ejectment suit should not be conclusive upon the parties if

raised in another action between them on a different cause
of action. A s u m m a r y procedure is a duly recorded
adversarial proceeding and the municipal trial courts have
long since become courts of record.
Consequently, the last sentence of the former Sec. 7
was reproduced in the present Sec. 18, as it now stands,
which reads: "Such judgment shall not bar an action
between the same parties respecting title to the land," for
reasons earlier r e i t e r a t e d . The continuation of t h a t
sentence stating "nor shall it be held conclusive of the facts
therein found in a case between the same parties upon a
different cause of action not involving possession" was
deleted. The result is that, under the present Rule, the
pronouncements in the ejectment suit regarding the issue
of ownership, being merely prima facie since they were
made only to determine the issue of possession, would not
be binding on the parties in a subsequent action over the
title to the same land. However, the findings in the first
case on the questions of material possession would bind
t h e p a r t i e s in t h e second s u i t , u n d e r t h e r u l e of
conclusiveness of judgment.
9. Actions for unlawful detainer, including an accion

publiciana, cannot be barred by the pendency of a land
registration case between the same parties as the first
involves the issue of possession and the latter is on the
issue of ownership. There is no identity of causes of action
or of the reliefs prayed for and a judgment in one cannot
constitute res judicata on the other (Medina vs. Valdellon,
L-38510, Mar. 25, 1975).
10. Where the party sought to be ejected under a writ
of execution was not impleaded in the action and is a total
stranger to the defendant, certiorari will lie as, not being
a party to the action, he cannot appeal from the judgment
rendered therein (Sta. Ana vs. Sunga, et al., L-32642,
Nov. 26, 1973).
898
UNLAWFUL DETAINER
11. A judgment in an ejectment suit is binding not

only upon the defendants in the suit, but also against those
not parties thereto, if they are:
(a) Trespassers, squatters or agents of the defendant
f r a u d u l e n t l y occupying t h e p r o p e r t y to f r u s t r a t e t h e
judgment (Santiago vs. Sheriff, 77 Phil. 740);
(b) Guests or other occupants of the premises with
the permission of the defendant (Gozon vs. De la Rosa, 77
Phil. 919);
(c) T r a n s f e r e e s pendente lite (Planas, et al. vs.
Madrigal & Co., 94 Phil. 754);
(d) Sublessees (Go King vs. Geronimo, 81 Phil. 445;
Guevara Realty, Inc. vs. CA, et al., G.R. No. 57469,
April 15, 1988);
(e) Co-lessees; and
(f) M e m b e r s of t h e family, r e l a t i v e s a n d o t h e r
privies of the defendant (Ariem vs. De los Angeles, et al.,
L-32164, Jan. 31, 1973).
Sec. 19. Immediate execution of judgment; how to

stay same. — If j u d g m e n t is r e n d e r e d a g a i n s t t h e
d e f e n d a n t , e x e c u t i o n shall i s s u e i m m e d i a t e l y u p o n
m o t i o n , u n l e s s a n appeal h a s b e e n perfected and t h e
d e f e n d a n t to stay e x e c u t i o n files a sufficient
s u p e r s e d e a s bond, approved by t h e Municipal Trial
Court a n d e x e c u t e d in favor of t h e plaintiff to pay
t h e r e n t s , d a m a g e s , and c o s t s a c c r u i n g d o w n t o t h e
t i m e o f t h e j u d g m e n t a p p e a l e d from, a n d u n l e s s ,
d u r i n g t h e p e n d e n c y o f the appeal, h e d e p o s i t s w i t h
the appellate court the amount of rent due from time
to t i m e u n d e r t h e contract, if any, as d e t e r m i n e d by
t h e j u d g m e n t of t h e Municipal Trial Court. In t h e
a b s e n c e of a c o n t r a c t , he s h a l l d e p o s i t w i t h t h e
R e g i o n a l Trial Court t h e r e a s o n a b l e v a l u e of t h e
use and occupation of t h e premises for the p r e c e d i n g
899
m o n t h or p e r i o d at t h e rate d e t e r m i n e d by the
j u d g m e n t of the lower court on or before the tenth
d a y o f e a c h s u c c e e d i n g m o n t h o r p e r i o d . The
s u p e r s e d e a s bond shall be t r a n s m i t t e d by the
Municipal Trial Court, with the other papers, to the
c l e r k o f t h e R e g i o n a l Trial Court t o w h i c h the
action is appealed.
All a m o u n t s so paid to the appellate court shall
be deposited with said court or authorized
g o v e r n m e n t d e p o s i t o r y bank, a n d s h a l l be held
t h e r e u n t i l t h e final d i s p o s i t i o n o f t h e a p p e a l ,
u n l e s s t h e court, by a g r e e m e n t of t h e interested
parties, or in the a b s e n c e of reasonable grounds of
opposition to a motion to withdraw, or for justifiable
reasons shall decree otherwise. Should the
d e f e n d a n t fail to make the p a y m e n t s above
prescribed from time to time d u r i n g the pendency
of the appeal, the appellate court, upon motion of
the plaintiff, and upon proof of such failure, shall
order the e x e c u t i o n of the j u d g m e n t appealed from
with r e s p e c t to the restoration of p o s s e s s i o n , but
s u c h e x e c u t i o n s h a l l not be a bar to t h e appeal
t a k i n g its course until the final disposition thereof
on the merits.
After the case is decided by the Regional Trial
Court, any money paid to the court by the defendant
for p u r p o s e s o f t h e s t a y o f e x e c u t i o n s h a l l b e
disposed of in accordance with the provisions of the
j u d g m e n t of the Regional Trial Court. In any case
w h e r e i n it a p p e a r s t h a t t h e d e f e n d a n t h a s been
deprived of the lawful possession of land or building
p e n d i n g the appeal by virtue of the e x e c u t i o n of
the judgment of the Municipal Trial Court, damages
for such deprivation of p o s s e s s i o n and restoration
of p o s s e s s i o n may be allowed the defendant in the
judgment of the Regional Trial Court disposing of
the appeal. (8a)
900
UNLAWFUL DETAINER
NOTES
1. This section is a copy of Sec. 8 of the former Rule,

except for the updated nomenclature of the courts and
the a m e n d m e n t t h a t rentals paid during the pendency of
the appeal in the Regional Trial Court shall be deposited
in t h e s a m e c o u r t , or in an a u t h o r i z e d g o v e r n m e n t
depository bank and not in the provincial or city treasury.
2. Execution pending appeal in ejectment cases is
governed by Sec. 8 (now, Sec. 18) of Rule 70, not by Sec. 2
of Rule 39. The latter provision requires good reasons
before a writ of execution can be issued in favor of the
prevailing party and is subject to the sound discretion of
the court. Its counterpart under this Rule does not require
the showing of good reasons as it is a m a t t e r of right
(San Miguel Wood Products, Inc. vs. Tupas, et al.,
A.M. No. MTJ-93-892, Oct. 25, 1995).
3. The order for the issuance of a writ of execution

to immediately enforce the judgment of the inferior court
is interlocutory and not appealable (De Po vs. Moscoso,
93 Phil. 427). The same rule applies in both types of
ejectment suits. Also, the fact that the decision of the
court a quo in ejectment cases is immediately executory
does not mean t h a t notice of the motion to the adverse
party is unnecessary. A party would not be in a position
to stay execution unless he is notified of the filing of t h a t
motion for execution (Kaw vs. Anunciacion, Jr., etc., et
al, A.M. No. MTJ-93-811, Mar. 1, 1995).
4. Immediate execution is proper if the judgment is
in favor of the plaintiff. If the judgment is in favor of the
d e f e n d a n t w i t h a n a w a r d for d a m a g e s u n d e r h i s
counterclaims, such judgment is not immediately executory
and can be executed only after the lapse of the 15-day
period to appeal without the plaintiff having perfected his
appeal.
901
In City of Manila, et al. vs. CA, et al. (L-42364,

April 9, 1987), it was held t h a t Sec. 8 (now, Sec. 19), Rule
70, on execution pending appeal, also applies even if it is
the plaintiff-lessor who appeals where, as in that case,
judgment was rendered in favor of the lessor but it was
not satisfied with the increased rentals granted by the
trial court, hence the appeal for a further increase thereof.
In such a situation, the lessor-appellant may ask for
execution pending appeal and if the lessee desires to stay
such execution, he must file the supersedeas bond and
deposit the accruing rentals. Otherwise, the lessee could
continue occupying t h e p r e m i s e s w i t h o u t filing the
s u p e r s e d e a s bond and making the necessary deposit
despite the fact that, by his failure to appeal, said lessee
does not question the accrued and the incoming rents.
Such continued stay on the premises and acquiescence to
the new rates by the lessee could also constitute a "good
reason" authorizing an execution pending appeal under
Sec. 2, Rule 39.
5. To stay the immediate execution of judgment in

ejectment proceedings, these sections require that the
defendant-appellant must (a) perfect his appeal, (b) file a
supersedeas bond, and (c) periodically deposit the rentals
falling due during the pendency of the appeal.
The appeal should be perfected in the same manner
as in ordinary civil actions, that is, by filing a notice of
appeal and paying the appellate court's docket fee, as
provided in Rule 40, within 15 days from notice of the
judgment.
The supersedeas bond may be in cash or by surety
bond (De Laureano vs. Adil, L-43345, July 29, 1976) and
since its purpose is to answer for the rents, damages and
costs accruing down to the judgment of the inferior court
appealed from (Bagtas vs. Tan, 93 Phil. 804), it must be
in the amount determined by the judgment of the lower
court. Attorney's fees awarded in said judgment need
902
UNLAWFUL DETAINER
not be covered by a supersedeas bond (Once vs. Gonzales,

et al., L-44806, Mar. 31, 1977).
The periodic deposit of future rentals is to ensure the
p a y m e n t of r e n t a l s accruing after the judgment of the
inferior court and until the final judgment on appeal. It
shall be in the amount determined by the inferior court
either on the basis of the lease contract, or, in forcible
entry cases, the reasonable value for the use or occupation
of the premises (Sec. 8). The Court of First Instance has
no power to increase or reduce the amount fixed by the
inferior courts as the reasonable rent or compensation for
the premises pending decision of the appeal. Whether
the amount fixed by the inferior court is correct or not will
have to be passed upon by the Court of First Instance in
deciding the appealed case (Estella vs. CA, et al., G.R.
No. 56284, Jan. 30, 1982).
6. Consequently, the filing of a supersedeas bond is
not required to stay execution on appeal (a) where the
monetary award in the judgment of the inferior court has
been deposited with said court (Castureras vs. Bayona,
106 Phil. 340), and (b) where the judgment of the lower
court did not make any findings with respect to any
amount in arrears, damages or costs against the defendant.
7. The supersedeas bond must be filed in the lower
court but the Court of First Instance, in its discretion and
upon good cause shown, may allow the defendant to file
t h a t bond in the latter court (Tagulimot vs. Makalintal,
85 Phil. 40).
The requirement for the filing of a supersedeas bond
is mandatory and if the bond is not filed, the execution of
the judgment is a mandatory and ministerial duty of the
court (Fuentes vs. Bautista, et al., L-31351, Oct. 26, 1973).
Even if appeal has been perfected and a supersedeas bond
h a s been filed but the accruing r e n t a l s are not duly
deposited, immediate restoration of the premises may still
be obtained as the supersedeas bond answers only for the
903
past rentals as fixed in the judgment of the inferior court

(De Laureano vs. Adil, et al., L-43345, July 29, 1976).
8. In forcible entry, the amount of the supersedeas
bond and the amounts to be periodically deposited by the
defendant to stay immediate execution, shall be t h a t
d e t e r m i n e d by t h e inferior court which shall be the
reasonable value of the use and occupancy of the premises.
In unlawful detainer, the amount of the supersedeas bond
and periodic deposit of rentals shall be that stated in the
lease contract.
9. The r e n t a l s accruing d u r i n g the pendency of
the appeal must be deposited on or before the dates stated
in the contract of the parties, if there is one, and in the
absence thereof, on or before the dates provided for in
Sec. 19, that is, on or before the tenth day of the month
s u c c e e d i n g t h a t w h e r e i n t h e r e n t a l a c c r u e d . The
defendant, however, does not have to make such deposit
where the judgment of the inferior court does not fix the
reasonable compensation or the rentals due (Lunsod vs.
Ortega, 46 Phil. 664) and t h e Regional Trial Court
cannot supply t h a t deficiency on appeal (Felipe vs.
Teodoro, 46 Phil. 409); or where the judgment of the lower
court is only for other items of damages (Inigo vs. Cabrera,
77 Phil. 650); or where the defendant has vacated and is
no longer in occupancy of the premises during the period
of appeal (Mayon Trading Co. vs. Co Bun Kim, 104 Phil.
242).
10. The time for the deposit of rentals as provided in

Sec. 8 (now, Sec. 19) cannot be extended by the Court of
F i r s t I n s t a n c e nor can it excuse a default in such
payments, in the absence of fraud, accident, mistake or
excusable negligence. Neither can the Court of First
Instance modify the amount to be paid as determined by
the inferior court {Lopez, Inc. vs. Phil. & Eastern Trading
Co., 98 Phil. 348). Where such rentals are not deposited
in accordance with now Sec. 19, the plaintiff is entitled to
904
UNLAWFUL DETAINER
execution as a m a t t e r of right (Chung Ben vs. Co Bun

Kim, 98 Phil. 13; Banzon vs. CA, et al., L-46464, Nov. 21,
1979). This requirement is mandatory (Chieng Hung vs.
Tan Ten, L-21209, Sept. 27, 1967; Base, et al. vs, Leviste,
et al., G.R. No. 52762, Aug. 29, 1980), u n l e s s t h e
defendant was prevented from doing so by fraud, accident,
mistake, excusable negligence, or the occurrence of a
s u p e r v e n i n g e v e n t which would make execution
inequitable (De Laureano vs. Adil, supra; Ng Lit, et al.
vs. Llanes, et al., L-49004, Nov. 10, 1982). Such requisite
deposit of rentals to stay execution cannot be avoided by
the offer or posting by defendant of additional bond in
lieu thereof (Phil. Holding Corp. vs. Valenzuela, et al.,
G.R. No. 55972, May 13, 1981).
11. The mere delay on the p a r t of the plaintiff to

apply for immediate execution due to default in the deposit
of r e n t a l s does not c o n s t i t u t e a waiver of such r i g h t
to execution (Silva vs. CA, 86 Phil. 599), but if despite
such default of the defendant, the plaintiff accepted the
belated payment of the defendant, then the plaintiff is
deemed to have waived his right to immediate execution
(Manotok vs. Legaspi, 77 Phil. 523).
12. In the execution of judgment in ejectment cases,
the provisions of Sec. 10(d), Rule 39, to the effect t h a t
no i m p r o v e m e n t s h a l l be d e s t r o y e d , d e m o l i s h e d or
removed except by special order of the court, is to be
observed. See the cases of Fuentes, et al. vs. Leviste, et
al. (L-47363, Oct. 28, 1982) and Atal Moslem, et al. vs.
Soriano, et al. (L-36837, Aug. 17, 1983) discussed in
Note 3 under Sec. 10, Rule 39.
13. The succeeding Sec. 20 of this Rule has been
discussed earlier, together with Sec. 15 thereof.
Sec. 21. Immediate execution on appeal to Court of

Appeals or Supreme Court. — The j u d g m e n t of t h e
905
Regional Trial Court shall be immediately execu-

tory, w i t h o u t p r e j u d i c e to a further a p p e a l that
may be t a k e n therefrom. (10a)
NOTES
1. In the former Rule 70, the procedure on appeal

from the decision of the Regional Trial Court to the Court
of Appeals was, with the exception of the need for a
supersedeas bond which was not applicable, virtually the
same as the procedure on appeal to the Regional Trial
Court. Thus, in the contemplated recourses to the Court
of Appeals, the defendant, after perfecting his appeal,
could also p r e v e n t t h e i m m e d i a t e execution of the
judgment by making the periodic deposit of rentals during
the pendency of the appeal and thereby correspondngly
prevent restitution of the premises to the plaintiff who
had already twice vindicated his claim to the property in
the two lower courts.
2. Under the amendatory procedure introduced by
this section, the judgment of the Regional Trial Court shall
be immediately executory and can accordingly be enforced
forthwith. It shall not be stayed by the mere continuing
deposit of monthly rentals by the dispossessor during the
pendency of the case in t h e Court of Appeals or the
Supreme Court, although such execution of the judgment
shall be without prejudice to that appeal taking its due
course. This reiterates Sec. 21 of the Revised Rule on
S u m m a r y P r o c e d u r e which r e p l a c e d t h e a p p e l l a t e
procedure in and repealed the former Sec. 10 of this Rule.
3. The issue of w h e t h e r or not decisions of the
Regional Trial Courts in appealed ejectment cases pending
a p p e a l w i t h t h e Court of Appeals a r e immediately
executory and cannot be stayed has been answered in the
case of Northcastle Properties & Estate Corp. vs. Judge
Paas (A.M. No. MTJ-99-1206, Oct. 22, 1999), upholding
the position that it is the ministerial duty of the Regional
906
UNLAWFUL DETAINER
Trial Court, as appellate court, to immediately execute its

decision.
It is clear from Sec. 21, Rule 70 t h a t it is only the
execution of the Metropolitan or Municipal Trial Court's
judgment pending appeal with the Regional Trial Court
which may be stayed by a compliance with the requisites
provided in Sec. 19, Rule 70 of the 1997 Rules of Civil
Procedure. On the other hand, once the Regional Trial
Court h a s r e n d e r e d a decision in t h e exercise of its
appellate jurisdiction, such decision shall, u n d e r said
Sec. 2 1 , be immediately executory, without prejudice
to an appeal via a petition for review before the Court
of A p p e a l s (Uy, et al. vs. Santiago, etc., et al.,
G.R. No. 131237, July 31, 2000).
907
RULE 71
CONTEMPT
S e c t i o n 1. Direct contempt punished summarily.

— A person guilty of m i s b e h a v i o r in the presence
of or so near a court as to obstruct or interrupt the
p r o c e e d i n g s before t h e same, i n c l u d i n g disrespect
t o w a r d t h e court, o f f e n s i v e p e r s o n a l i t i e s toward
o t h e r s , or refusal to be s w o r n or to a n s w e r as a
w i t n e s s , or to subscribe an affidavit or deposition
w h e n lawfully required to do so, may be summarily
adjudged in c o n t e m p t by such court and p u n i s h e d
by a fine n o t e x c e e d i n g t w o t h o u s a n d p e s o s or
i m p r i s o n m e n t not e x c e e d i n g t e n (10) days, or both,
if it be a Regional Trial Court or a court of equi-
valent or higher rank, or by a fine not e x c e e d i n g
two h u n d r e d p e s o s or i m p r i s o n m e n t not e x c e e d i n g
one (1) day, or both, if it be a lower court, ( l a )
NOTES
1. This is an exact copy of the former Sec. 1 of this

same Rule, except for the increased penalties and the
specification that the "superior court" referred to therein
is the "Regional Trial Court or a court of equivalent or
higher rank," and "lower court" is used instead of "inferior
court."
2. The increased p e n a l t i e s for direct contempt
under this section and for indirect contempt in Sec. 3
of this Rule were already imposed by the Supreme Court
in its A d m i n i s t r a t i v e C i r c u l a r No. 22-95, effective
November 16, 1995. It took judicial notice of the fact
that the penalties for contempt in the 1964 Rules of Court
were the same penalties imposed in Secs. 1 and 6, Rule 64
of the 1940 Rules of Court, or more than 55 years ago. It
also took cognizance of the fact that the amount of the
908
RULE 71 CONTEMPT SEC. 3
fine is intended to be the financial equivalent of the term

of imprisonment for the offense, in relation to the present
value of our currency which had to be considered in light
of the international rates of exchange, the consumer price
index and the minimum wage law.
3. U n d e r t h e Rules, c o n t e m p t is classified into
direct (Sec. 1) a n d indirect, or constructive (Sec. 3),
contempt. It may also be classified into criminal contempt,
the purpose of which is to vindicate public authority, and
civil contempt, the purpose of which is to protect and
enforce t h e civil r i g h t s and remedies of t h e l i t i g a n t s
(see 17 C.J.S. 8). Civil contempt is the failure to do
something ordered by the court for the benefit of a party.
Criminal contempt is conduct directed against the dignity
or authority of the court. Either may be punished by fine
or imprisonment (see Slade Perkins vs. Dir. of Prisons,
58 Phil. 271; Converse Rubber Corp. vs. Jacinto Rubber,
etc., Inc., L-27425, April 28, 1980).
4. Direct contempt, or contempt in facie curiae, is

committed in the presence of or so near a court or judge
and can be punished summarily without hearing. Indirect
contempt is not committed in the presence of the court
and can be punished only after hearing.
5. The use of c o n t e m p t u o u s language a g a i n s t a
particular judge in pleadings presented in another court
or p r o c e e d i n g c o n s t i t u t e s indirect c o n t e m p t ; if said
pleading is submitted before the same judge, it would be
direct contempt (Ang vs. Castro, G.R. No. 66371, May 15,
1985). It has, however, been heretofore held that abuses
against a trial judge made in an appeal is a contempt of
the a p p e l l a t e court, not of the trial court, hence the
former has the authority to deal with such contumacious
conduct (People vs. Alarcon, 69 Phil. 265).
6. Because of its punitive aspects, it has been held
that a contempt proceeding is in the nature of a criminal
909
action (Villanueva vs. Lim, 69 Phil. 654) and the

procedural and evidentiary rules in criminal actions
are applied as far as applicable (Lee Yick Hon vs. Collector
of Customs, 41 Phil. 548; Fuentea, et al. vs. Leviste, et al.,
L-47363, Oct. 28, 1982). Doubts should be resolved in
favor of the person charged with contempt (Concepcion
vs. Gonzales, L-15638, April 26, 1962). The rules of
procedure governing c r i m i n a l contempt proceedings
are ordinarily inapplicable to civil contempt proceedings
(Rosario Textile Mills, Inc., et al. vs. CA, et al.,
G.R. No. 137326, Aug. 25, 2003). In the taxonomy of
cases, however, they are classified as special civil actions.
7. Courts should be slow to punish for contempt as

t h i s d r a s t i c r e m e d y s h o u l d b e e x e r c i s e d upon the
preservative and not on the vindictive principle (Gamboa
vs. Teodoro, et al., 91 Phil. 270; De Esperagoza vs. Tan,
94 Phil. 749; Victorino vs. Espiritu, L-17735, July 30,
1962).
8. For an e x t e n s i v e discussion of t h e law and
jurisprudence on contempt, see the Resolution of the
Supreme Court on the contempt incident in People vs.
Godoy/Gacott, Jr. vs. Reynoso, Jr., et al. (G.R.
Nos. 115908-09, Mar. 29, 1995).
Sec. 2. Remedy therefrom. — The person adjudged

in d i r e c t c o n t e m p t by a n y court may not appeal
therefrom, but may avail h i m s e l f of the remedies
of certiorari or prohibition. The e x e c u t i o n of the
j u d g m e n t shall be s u s p e n d e d p e n d i n g resolution of
such petition, provided such person files a bond fixed
b y t h e c o u r t w h i c h r e n d e r e d t h e j u d g m e n t and
c o n d i t i o n e d that he will abide by and perform the
j u d g m e n t s h o u l d t h e p e t i t i o n be decided against
him. (2a)
910
NOTES
1. This amended provision substantially changes the

procedure under the former Rules. The present remedy
from a judgment holding a person in direct contempt by
any court is t h e special civil action of c e r t i o r a r i or
prohibition under Rule 65.
This change has to be emphasized since under the
former Rules, judgments of municipal courts holding a
person guilty of direct or indirect contempt were appealable
to the Court of First Instance, while judgments of the
superior courts on direct contempt were not appealable
(Cornejo vs. Tan, etc., 85 Phil. 772). The present uniform
rule has made the procedure more simple and realistic.
2. It was formerly held t h a t a person adjudged by a
Court of First Instance as guilty of direct contempt may
i n s t i t u t e an original action for habeas corpus in t h e
Supreme Court (Tinagan vs. Perlas, L-23965, Jan. 30,
1968). This was a justifiable remedy if t h e p e n a l t y
i m p o s e d w a s i m p r i s o n m e n t , a n d not merely a fine,
especially since at t h a t time, judgments of superior courts
on direct contempt were also not appealable. With the
change effected by this amended section, the remedy of
habeas corpus may possibly be availed of in extreme cases
in view of t h e fact t h a t t h e r e is a judicial o r d e r of
commitment and certiorari may lie. Ordinarily, however,
both remedies may not be simultaneously availed of since
certiorari and prohibition presuppose that there is no other
plain, speedy and adequate remedy in the ordinary course
of law, and t h a t is not true where habeas corpus can and
has been invoked as another remedy.
Sec. 3. Indirect contempt to be punished after charge

and hearing. — After a charge in w r i t i n g h a s b e e n
filed, and an o p p o r t u n i t y given to the r e s p o n d e n t
to c o m m e n t t h e r e o n w i t h i n such period as may be
911
fixed by t h e court and to be heard by himself or

counsel, a p e r s o n guilty of any of the following acts
may be p u n i s h e d for indirect contempt:
(a) Misbehavior of an officer of a court in the
performance of h i s official d u t i e s or in his official
transactions:
(b) D i s o b e d i e n c e of or r e s i s t a n c e to a lawful
writ, p r o c e s s , order, or j u d g m e n t of a court,
i n c l u d i n g the act of a person who, after being
d i s p o s s e s s e d or ejected from any real property by
the j u d g m e n t or p r o c e s s of any court of c o m p e t e n t
jurisdiction, e n t e r s or a t t e m p t s or i n d u c e s another
to e n t e r into or upon s u c h real property, for the
purpose of e x e c u t i n g acts of ownership or
possession, or in any manner disturbs the
possession given to the person adjudged to be
entitled thereto;
(c) Any a b u s e of or any unlawful interference
with the p r o c e s s e s or p r o c e e d i n g s of a court not
c o n s t i t u t i n g d i r e c t c o n t e m p t u n d e r s e c t i o n 1 of
this Rule;
(d) Any improper c o n d u c t tending, directly or
indirectly, to impede, obstruct, or degrade the
a d m i n i s t r a t i o n of justice;
(e) A s s u m i n g to be an attorney or an officer of
a court, and a c t i n g as such w i t h o u t authority;
(f) Failure to obey a subpoena duly served;
(g) The rescue, or attempted rescue, of a person
or property in the custody of an officer by virtue of
an order or process of a court held by him.
But n o t h i n g in this section shall be so construed
as to prevent the court from issuing process to bring
the r e s p o n d e n t into court, or from holding him in
custody p e n d i n g such proceedings. (3a)
912
R U L E 71 CONTEMPT SEC. 3
NOTES
1. With some minor changes in the phraseology, this

provision is a reproduction of the former Sec. 3 of this
Rule. It is now specified t h a t the respondent should
(a) be given an opportunity to comment on the charge
within such period fixed by the court, and (b) be heard
thereon by himself or counsel.
T h u s , t h e p r o c e d u r a l requisites for indirect con-
t e m p t proceedings are (a) a charge in w r i t i n g or an
order of t h e court to a p p e a r and explain, and (b) an
opportunity for the respondent to comment on the charge
and to appear and explain his conduct.
2. A contempt case is a special civil action governed
by Rule 71 and by the rules on ordinary civil actions but
only insofar as they are not inconsistent with the rules on
this special civil action. A respondent in a contempt charge
is not required to file a formal answer similar to t h a t in
ordinary civil actions. Instead, the court must set the
contempt charge for hearing on a fixed date on which the
r e s p o n d e n t m u s t make his appearance to answer the
charge (Sec. 4). If he shall fail to appear on t h a t date
without justifiable reason, the court may order his arrest
(Sec. 9), just like the accused in a criminal case who fails
to appear when so required. The court does not declare
the respondent in a contempt charge in default since this
proceeding partakes of the nature of a criminal prosecution
and should follow a procedure similar thereto (Fuentes,
et al. Leviste, et al., supra).
3. A p e r s o n c a n n o t be p u n i s h e d for a l l e g e d
disobedience of an order of the court, such as a writ of
execution directing the sheriff to place the plaintiff in
possession of the property held by said person. Said writ
is addressed to the sheriff, not to that person, and it is the
sheriff who must perform his duty under Sec. 8, Rule 39
and in accordance with the directives contained in the writ
913
(Lipata vs. Tutaan, et al., L-16643, Sept. 29, 1983;

Defalobos vs. Aquilizan, et al, G.R. No. 65831, May 20,
1987; Pascua, et al. vs. Simeon, et al., L-47717, May 31,
1988).
4. Where the contempt is based on the respondent's
refusal to vacate the land despite a writ for his ejectment,
the appeal from the contempt order necessarily involves
or carries with it an appeal from the order to vacate.
However, the perfection of the appeal from the contempt
order will not prevent the execution of the order of eviction
u n l e s s t h e bond r e q u i r e d by Sec. 11, Rule 7 1 , has
been seasonably filed (Heirs ofB.A. Crumb vs. CA, et al.,
L-26167, Jan. 30, 1970).
5. The Crumb case, however, c o n t e m p l a t e s the

situation wherein the occupants of the disputed property
were not defendants in the original case and had no
opportunity to be heard therein. Where the defendants
in the contempt case were also defendants in the original
case, they are concluded by the final judgment therein,
hence their conviction in a first contempt charge for refusal
to vacate the premises and their appeal therefrom does
not constitute an appeal from the order of eviction and
they can be proceeded against on a second contempt charge
(Dumalagan vs. Palangpangan, L-34095, July 29, 1974).
6. Where, by virtue of a judgment or order of a

competent court, a litigant has been placed in possession
of real property, the reentry of the adverse party who was
evicted therefrom constitutes contempt under Sec. 3(b)
of this Rule and there is no time limit in which such
reentry constitutes contempt (Medina vs. Garces, L-25923,
July 15, 1980).
7. C o n t e m p t by r e e n t r y upon t h e land, u n d e r
Sec. 3, Par. (b) of this Rule, is punishable even if no
party litigant is adversely affected, as the act constitutes
a defiance of the authority of the court. Such act of
914
c o n t e m p t is p u n i s h a b l e even if it t a k e s place beyond

5 years from the execution of the judgment of ejectment
(Patagan, et al vs. Panis, et al, G.R. No. 55630, April 8,
1988).
S e c . 4. How proceedings commenced. — P r o c e e d -

i n g s for i n d i r e c t c o n t e m p t m a y be i n i t i a t e d motu
proprio by t h e c o u r t a g a i n s t w h i c h t h e c o n t e m p t
w a s c o m m i t t e d by o r d e r or a n y o t h e r formal c h a r g e
requiring the respondent to show cause why he
s h o u l d n o t be p u n i s h e d for c o n t e m p t .
In all o t h e r c a s e s , c h a r g e s for i n d i r e c t c o n t e m p t
shall be c o m m e n c e d by a verified petition w i t h
s u p p o r t i n g p a r t i c u l a r s and certified t r u e c o p i e s o f
d o c u m e n t s or p a p e r s i n v o l v e d t h e r e i n , and u p o n full
c o m p l i a n c e w i t h t h e r e q u i r e m e n t s for f i l i n g
i n i t i a t o r y p l e a d i n g s for c i v i l a c t i o n s i n t h e c o u r t
concerned. If the contempt charges arose out of or
are related to a principal action pending in the
c o u r t , t h e p e t i t i o n for c o n t e m p t s h a l l a l l e g e t h a t
fact but said p e t i t i o n shall be d o c k e t e d , h e a r d a n d
d e c i d e d s e p a r a t e l y , u n l e s s the court in its d i s c r e t i o n
orders the consolidation of the contempt charges
a n d t h e p r i n c i p a l a c t i o n for j o i n t h e a r i n g a n d
d e c i s i o n , (n)
NOTE
1. This new provision clarifies with a regulatory norm

t h e p r o p e r p r o c e d u r e for c o m m e n c i n g c o n t e m p t
proceedings. While such proceeding has been classified
as a special civil action u n d e r t h e former Rules, the
heterogeneous practice, tolerated by the courts, has been
for any party to file a mere motion without paying any
docket or lawful fees therefor and without complying with
the requirements for initiatory pleadings, which is now
required in the second paragraph of this amended section.
915
Worse, and as a consequence of unregulated motions for

contempt, said incidents sometimes remain pending for
resolution a l t h o u g h t h e main case h a s already been
decided. There are other undesirable aspects but, at any
rate, the same may now be eliminated by this amendatory
procedure.
Henceforth, except for indirect contempt proceedings
initiated motu proprio by order of or a formal charge by
the offended court, all charges shall be commenced by a
verified p e t i t i o n w i t h full c o m p l i a n c e w i t h t h e
r e q u i r e m e n t s t h e r e f o r a n d s h a l l be disposed of in
accordance with the second paragraph of this section.
Sec. 6. Where charge to be filed. — W h e r e t h e

charge for indirect c o n t e m p t h a s been committed
a g a i n s t a R e g i o n a l Trial Court or a c o u r t of
e q u i v a l e n t or h i g h e r rank, or a g a i n s t an officer
a p p o i n t e d by it, t h e c h a r g e may be filed w i t h such
court. Where s u c h c o n t e m p t h a s been committed
against a lower court, the charge may be filed with
t h e R e g i o n a l Trial Court o f t h e p l a c e i n w h i c h
the lower court is sitting; but the p r o c e e d i n g s
may also be i n s t i t u t e d in such lower court subject
to appeal to t h e Regional Trial Court of s u c h place
in the same m a n n e r as provided in section 11 of this
Rule. (4a) (As corrected by Resolution of the Supreme
Court, dated July 21, 1998)
NOTE
1. As a rule, the proceeding for indirect contempt

shall be filed in and tried by the court against which the
contumacious conduct was committed. There are
exceptions to this procedure, viz.:
(a) Indirect contempt committed against an inferior
court which may also be filed in and tried by a Regional
Trial Court regardless of the imposable penalty (see also
916
RULE 71 CONTEMPT S E C S . 6-7
People vs. Orpilla-Molina, 105 Phil. 362); and

(b) Indirect contempt against the Supreme Court
which it may cause to be investigated by a prosecutor,
with the corresponding charge to be thereafter filed in
and tried by a Regional Trial Court (see People vs. De
Luna, 102 Phil. 968), or for hearing and recommendation
where the charge involves questions of fact (Estrada vs.
CAR, L-17481 and L-17537-59, Sept. 24, 1962).
The S u p r e m e Court, however, a b s e n t any factual
controversy to be resolved or under the res ipsa loquitur
rule, may dispense with any referral and decide the case
after granting the respondent the opportunity to comment
and a p p e a r , as it h a s done in some cases of palpable
contumely.
Sec. 6. Hearing; release on bail. — If t h e h e a r i n g

is n o t o r d e r e d to be had forthwith, t h e r e s p o n d e n t
m a y be r e l e a s e d from c u s t o d y u p o n filing a b o n d , in
an a m o u n t fixed by t h e court, for h i s a p p e a r a n c e
at the hearing of the charge. On the day set
t h e r e f o r , t h e c o u r t shall p r o c e e d t o i n v e s t i g a t e t h e
charge and consider such comment, testimony or
d e f e n s e as t h e r e s p o n d e n t may m a k e or offer. (5a)
Sec. 7. Punishment for indirect contempt. — If t h e

r e s p o n d e n t is a d j u d g e d guilty of i n d i r e c t c o n t e m p t
c o m m i t t e d a g a i n s t a R e g i o n a l Trial Court or a c o u r t
of e q u i v a l e n t or h i g h e r rank, he may be p u n i s h e d
by a fine not e x c e e d i n g thirty t h o u s a n d p e s o s or
i m p r i s o n m e n t not e x c e e d i n g six (6) m o n t h s , or both.
If he is adjudged guilty of contempt committed
a g a i n s t a l o w e r court, he may be p u n i s h e d by a fine
not e x c e e d i n g five t h o u s a n d p e s o s or i m p r i s o n m e n t
n o t e x c e e d i n g o n e (1) m o n t h , o r b o t h . I f t h e
c o n t e m p t c o n s i s t s in the violation of a writ of
i n j u n c t i o n , t e m p o r a r y r e s t r a i n i n g order or status
quo order, he may also be ordered to make c o m p l e t e
917
restitution to t h e party injured by such violation

of the property involved or s u c h a m o u n t as may be
alleged and proved.
The writ of e x e c u t i o n , as in ordinary civil
a c t i o n s , s h a l l i s s u e for t h e e n f o r c e m e n t o f a
judgment imposing a fine unless the court otherwise
provides. (6a)
NOTES
1. The penalties for indirect contempt under the

amended provisions of Sec. 7 have been increased for the
r e a s o n s e x p l a i n e d by t h e S u p r e m e C o u r t in its
Administrative Circular No. 22-95. Incidentally, it will
be noted that the penalties for indirect contempt are higher
than those for direct contempt, in consideration of the
nature of the acts committed.
2. The text of the former Sec. 6 of this Rule has
been s u b s t a n t i a l l y reproduced, with t h e addition of
temporary restraining orders and status quo orders as
among the court processes the violation of which constitute
contempt.
Sec. 8. Imprisonment until order obeyed. — When

the c o n t e m p t c o n s i s t s in the refusal or omission to
do an act w h i c h is yet in the power of the respondent
to perform, he may be imprisoned by order of the
court c o n c e r n e d until he performs it. (7a)
Sec. 9. Proceeding when party released on bail fails

to answer. — When a r e s p o n d e n t r e l e a s e d on bail
fails to appear on the day fixed for the hearing, the
c o u r t may i s s u e a n o t h e r o r d e r of a r r e s t or may
order the bond for his appearance to be forfeited
and confiscated, or both; and, if the bond be
proceeded against, the measure of damages shall be
the e x t e n t of t h e loss or injury s u s t a i n e d by the
918
RULE 71 CONTEMPT SECS. 10-11
a g g r i e v e d p a r t y b y r e a s o n o f t h e m i s c o n d u c t for
which the contempt charge was prosecuted, with
t h e c o s t s o f t h e p r o c e e d i n g s , and s u c h r e c o v e r y shall
be for t h e b e n e f i t of t h e party injured. If t h e r e is
no a g g r i e v e d party, the bond shall be liable and
d i s p o s e d o f a s i n c r i m i n a l c a s e s . (8a)
S e c . 10. Court may release respondent. — The court

w h i c h i s s u e d t h e o r d e r i m p r i s o n i n g a p e r s o n for
c o n t e m p t m a y d i s c h a r g e h i m from i m p r i s o n m e n t
w h e n it appears that public interest will not be
p r e j u d i c e d by h i s r e l e a s e . (9a)
S e c . 11. Review of judgment or final order; bond

for stay. — The j u d g m e n t or final o r d e r of a c o u r t in
a c a s e of i n d i r e c t c o n t e m p t may be a p p e a l e d to t h e
p r o p e r c o u r t a s i n c r i m i n a l c a s e s , but e x e c u t i o n o f
t h e j u d g m e n t or final order shall not be s u s p e n d e d
u n t i l a b o n d is filed by t h e p e r s o n a d j u d g e d in
c o n t e m p t , i n a n a m o u n t fixed b y t h e c o u r t from
which the appeal is taken, conditioned that if the
a p p e a l be d e c i d e d a g a i n s t h i m he will abide by and
p e r f o r m t h e j u d g m e n t or final order. (10a)
NOTES
1. As a m e n d e d , Sec. 8 now a l l o w s a n y c o u r t
concerned, and not only a superior court, to imprison the
disobedient respondent until he performs the act ordered
by t h e c o u r t . As held by t h e S u p r e m e Court, such
i m p r i s o n m e n t is r e m e d i a l in n a t u r e and coercive in
c h a r a c t e r . It relates to something to be done by the
r e s p o n d e n t and by doing the same he can obtain his
d i s c h a r g e . In effect, u n d e r such c i r c u m s t a n c e s , t h e
respondent "carries the keys to his prison in his own
pocket" (Galvez vs. Republic Surety & Insurance Co., Inc.,
105 Phil. 944; cf. Quinio vs. CA, et al, G.R. No. 113867,
July 13, 2000).
919
2. Sec. 8, however, does not apply to a situation

wherein tenants refused or failed to pay their rentals to
the special administratrix of the property as ordered by
the court. Although they explained t h a t they were
uncertain as to whom to pay their rentals, aside from their
financial incapacity, they were ordered arrested for not
complying with the court order. The Supreme Court held
that the non-payment of the rentals, which is a civil debt,
is covered by t h e c o n s t i t u t i o n a l g u a r a n t e e a g a i n s t
imprisonment.
F u r t h e r m o r e , the subject order issued under the
authority of Sec. 8, Rule 71 is not a special judgment
enforceable u n d e r Sec. 11, Rule 39, or execution of
judgment for specific acts which is regulated by Sec. 10 of
the same Rule. The trial court could have had its order
executed in accordance with the provision of said Sec. 9 of
Rule 39 but it had no power to order the a r r e s t and
detention of said tenants.
3. Appeals from municipal courts to the Court of
First Instance in contempt proceedings, and those from
the Court of First Instance to the higher courts, shall be
perfected as in criminal cases, that is, by merely filing a
notice of appeal within 15 days from promulgation of
judgment, with such period interrupted by a motion for
new trial seasonably filed (J.M. Tuason & Co., Inc. us.
Familara, et al., L-24934, Sept. 28, 1968). In both cases,
the judgment shall be suspended provided the appellant
files the corresponding bond required by the Rules in the
amount fixed by the courts whose judgments are appealed
from.
4. A judgment holding a person in contempt, when
appealable, is subject to review in the manner provided
for review of judgments of conviction in criminal cases
(Perkins us. Director of Prisons, 58 Phil. 271).
920
R U L E 71 CONTEMPT S E C . 12
5. As in c r i m i n a l cases, a j u d g m e n t absolving a
person charged with criminal contempt or dismissing the
contempt charged is not appealable (Pajao vs. Provincial
Board of Canvassers of Leyte, 88 Phil. 588; Mison vs.
Subido, L-27704, May 28, 1970), unless, as in criminal
cases, t h e r e has been no adjudication on the merits but
only a dismissal on motion of the person charged based on
jurisdictional grounds (Amoren vs. Pineda, et al., L 23666,
Sept. 23, 1967); but these rulings do not apply to civil
contempt (Converse Rubber Corp. vs. Jacinto Rubber, etc.,
supra) and appeal lies from the order finding the defendant
guilty or absolving him of the charge.
S e c . 12. Contempt against quasi-judicial entities.

— U n l e s s o t h e r w i s e p r o v i d e d by law, t h i s Rule s h a l l
apply to contempt committed against persons,
e n t i t i e s , b o d i e s o r a g e n c i e s e x e r c i s i n g quasi-judicial
f u n c t i o n s , o r s h a l l h a v e s u p p l e t o r y effect t o s u c h
rules as they may have adopted pursuant to
a u t h o r i t y g r a n t e d t o t h e m b y l a w t o p u n i s h for
c o n t e m p t . T h e R e g i o n a l Trial Court o f t h e p l a c e
w h e r e i n the contempt has been committed shall
h a v e j u r i s d i c t i o n o v e r s u c h c h a r g e s as may be filed
t h e r e f o r , (n)
NOTES
1. This new section was necessitated by the holdings

t h a t the former Rule 71 applied only to superior and
i n f e r i o r c o u r t s a n d did not c o m p r e h e n d c o n t e m p t
committed against administrative or quasi-judicial
officials or b o d i e s , u n l e s s said c o n t e m p t is clearly
c o n s i d e r e d a n d e x p r e s s l y defined a s c o n t e m p t o f
court, as was done in Sec. 580 of the former Revised
A d m i n i s t r a t i v e Code. The provision referred to con-
templates the situation where a person, without lawful
excuse, fails to appear, make oath, give testimony or
produce documents when required to do so by the official
921
or body exercising such powers. For such violation, said

person shall be subject to discipline, as in the case of
contempt of court, upon application of the official or body
with t h e Regional Trial Court for t h e corresponding
sanctions. Other acts or violations cannot be punished as
contumacious conduct by administrative or quasi-judicial
entities unless the governing law specifically defines such
violation as c o n t e m p t of court, or it unequivocally
authorizes said official or body to punish for contempt,
providing at the same time the corresponding penalty
(People vs. Mendoza, et al., 92 Phil. 570; see Sec. 13,
Chapter 3, Book VII, E.O. 292 [Administrative Code of
1987]).
2. U n d e r s u b s t a n t i a l l y t h e same considerations,
it was held t h a t a city council does not have the power
to subpoena witnesses and to p u n i s h non-attendance
for c o n t e m p t since t h e r e is n e i t h e r a constitutional
nor statutory conferment on it of such powers. Unlike
Congress whose contempt power is sui generis and inheres
in it as a coordinate branch of Government, no such power
can be implied in the legislative functions delegated to
local legislative bodies, especially since the contempt power
is essentially of a judicial n a t u r e (Negros Oriental II
Electric Cooperative, Inc., et al. vs. Sangguniang
Panlungsod of Dumaguete, et al, G.R. No. 72492, Nov. 5,
1987).
3. This new provision confers contempt power on all

quasi-judicial entities or supplements the rules they may
have adopted pursuant to such power conferred by their
governing law, u n l e s s the applicable law otherwise
provides. This is in effect a remedial measure because of
the inclusion in the former Rule 71 only of the superior
and lower courts, t h u s excluding pro tanto the quasi-
judicial entities in the exercise of their quasi-judicial, as
distinguished from their quasi-legislative, functions.
922

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R E M E D I A L LAW

1. Classification of courts in the Philippines:

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

e. Constitutional courts: Those which owe t h e i r

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

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

the Regional Trial Courts; with the Court of Appeals and

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

7. Jurisdiction and venue are distinguished as

vs. Moir, 36 Phil. 213; Associated Labor Union vs.

10. Requisites for t h e exercise of jurisdiction and

d. Jurisdiction over the issues of the case: This is

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

13. Where t h e complaint is for a c t u a l d a m a g e s of

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

15. The c o n s t i t u t i o n a l i t y of a s t a t u t e m u s t be ques-

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

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

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

i. The d o c t r i n e laid down in Tijam vs. Sibong-

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

20. Q u e s t i o n s involving o w n e r s h i p of or title to real

2 1 . Statutes regulating the procedure of the courts

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

1. The s t u d y of civil p r o c e d u r e includes o r d i n a r y

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

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

c. Transitory action: One t h e v e n u e of which is

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

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

Article VII (Executive D e p a r t m e n t )

Article VIII (Judicial D e p a r t m e n t )

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

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

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

Article IX (Constitutional Commissions)

1. See, in t h i s connection, t h e notes u n d e r Sec. 7,

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

1. The Judiciary Reorganization Act of 1980 (Batas

2. The Court of Appeals was replaced by the

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

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

4. The city courts and municipal courts in the

5. The city courts in other cities which do not now

6. Excepted from t h e coverage of t h e Act a r e t h e

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

7. No mention is m a d e of t h e Court of Tax Appeals

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

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

"(2) Exclusive original jurisdiction over actions

1. Unlike t h e provisions of Sec. 30 of t h e J u d i c i a r y

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

3. However, by specific provisions of Sec. 9 of this

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

5. The exclusive appellate jurisdiction of t h e Court

action or discretion involves the investigation of facts,

6. It was formerly held t h a t t h e 30-day period to

7. The aforesaid doctrine was t a k e n into account by

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

8. T h e foregoing doctrines, however, a r e no longer

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

II. Regional Trial Courts:

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

falling within t h e exclusive original jurisdiction of a