Rules 1 To 10 Midterm

NOTES ON CIVIL PROCEDURE
Rule 01
GENERAL PROVISIONS
SECTION 1. Title of the Rules. These Rules shall be known and cited
as the Rules of Court.
Q: Classify civil actions.

A: The following:
As to NATURE (Section 3 [a])
a.) Ordinary Civil Actions
b.) Special Civil Actions
Section 1 provides the title of the Rule Rules of Court. And Section 2, these rules shall
apply in all the courts except as otherwise provided by the Supreme Court. Meaning, applicable
to all courts except when the SC say otherwise. For example: The SUMMARY RULES on
procedure which is applicable to some cases in the MTC.
II.
As to CAUSE or FOUNDATION:
a.) Real Actions
b.) Personal Actions
c.) Mixed Actions
Another example of when the SC say otherwise is Section 4 that the rules shall not apply
to election cases, land registration, cadastral, naturalization, insolvency proceedings and other
cases not herein provided for except by analogy. That is formerly Rule 143. Ngayon nilagay nila
sa umpisa. The placement is better so that we will see it immediately. That is actually not a new
provision. Thats an old one. It used to be in Rule 143, now it is in Rule 1.
III.
As to PLACE OF FILING
a.) Local Actions
b.) Transitory Actions
IV.
As to OBJECT
a.) Action In Personam
b.) Action In Rem
c.) Action Quasi In Rem
Sec. 3. Cases governed. These Rules shall govern the procedure to

be observed in actions, civil or criminal, and special proceedings.
xxxxxx
Now, some people are asking me, Akala ko ba civil procedure ito, bakit merong criminal?
How come it mentions criminal cases and definitions when it is supposed to be 1997 Rules on
Civil Procedure?
NO, Rule 1 is the general provision for the entire Rules of Court. You look at the title, These
rules shall be known as the Rules of Court. This is the common denominator from the first to
the last Rule. Thats why it says there special proceedings, civil cases and criminal cases. Now
we are not interested in criminal cases of course. Civil action na larg tayo muna.
xxxxx
(a) A civil action is one by which a party sues another for the
enforcement or protection of a right, or the prevention or redress of a
wrong.
A civil action may either be ordinary or special. Both are
governed by the rules for ordinary civil actions, subject to the specific
rules prescribed for a special civil action.
xxxxx
Well the definition of a civil action is there. The definition now becomes shorter compared
to the previous definition. Its the same definition. It has only been shortened.
A CIVIL ACTION is one by which a party sues another for the enforcement or protection of a
right, or the prevention or redress of a wrong. So, that is the purpose of a civil suit to enforce or
protect your right or you sue somebody for the purpose of preventing or redressing a wrong.
CLASSIFICATION OF CIVIL ACTIONS
I.
SEC. 2. In what courts applicable. These Rules shall apply in all the
courts, except as otherwise provided by the Supreme Court.
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I. CIVIL ACTION; CLASSIFICATION AS TO NATURE

ORDINARY CIVIL ACTIONS and SPECIAL CIVIL ACTIONS
The special civil actions are governed by Rules 62 to 71. And the actions not among those
mentioned is automatically ordinary. And even at this stage, you should be able to give already
what. are the special civil actions. So, it is a matter of looking at the table of contents.
Rules 62 to 71: Interpleader, Declaratory Relief, Certiorari, Prohibition, Mandamus, Quo
Warranto, Expropriation, Foreclosure of Mortgage, Partition, Forcible Entry, Unlawful Detainer
and Contempt. There is a new one Review of Final Decisions or Resolutions of the COMELEC
and COA under Rule 64. But actually it says there, it is governed by Rule 65. So in other words
Certiorari (Rule 65) pa rin although its a new rule now. Rule 64 is entitled Review of Decisions
of the COMELEC and the COA, but it shall he governed by Rule 65 on Certiorari .
Q: What is so important in distinguishing a special civil action from an ordinary civil action?
A: What makes an action special is simply because of the fact that there are some specific
rules prescribed for them which are not found in other rules. But to say that the rules on
ordinary civil actions do not apply to special civil actions is false. The law is very clear. Both are
governed by the rules on ordinary civil actions subject to the specific rules.
Therefore, in case of conflict between the specific rule governing a particular type of civil
action and the ordinary, then you follow the specific provision. But if the rules on special civil
actions are silent, apply the ordinary rules.
Give an example of a case where in the absence of a special provision in the rules on special
civil actions the court had to apply the rules on ordinary civil actions by analogy. The case of
AMBERTI vs. COURT OF APPEALS
195 SCRA 659 [1991]
FACTS: This case involved a petition for certiorari (special civil action
under Rule 65) and then before the respondent could answer the petition, he
withdrew the petition. And then later on he changed his mind. He re-filed the
petition. The question that was asked by the SC is when you file a special civil
action for certiorari and then before the other party could answer you withdraw
it, is the withdrawal with or without prejudice? Can you re-file it?
There is no rule in Rule 65 answering that question so the SC had to resort
to the ordinary rules by analogy.
HELD: Certiorari is similar to appeal although it is not really an appeal. And
the SC looked at the law on appeal. What happens when you perfect your appeal
and then later on you withdraw your appeal? What will happen to the order or
judgment? Rule 50 says that if you withdraw the appeal, the judgment appealed
from will now become final and executory. Therefore, since it is now final and
executory, you cannot change it anymore.
Applying the foregoing rules in a supplementary manner (or by analogy),
upon the withdrawal of a petition in a special civil action before the answer or
comment thereto has been filed, the case shall stand as though no appeal has
been taken, so that the judgment or order of the lower court being questioned
becomes immediately final and executory. Thus, a resolution granting the
withdrawal of such a petition is with prejudice and petitioner is precluded from
bringing a second action based on the same subject matter.
So thats a perfect example of the application of ordinary rules in special civil actions.
Now, there are other classifications of civil actions which are not expressly stated in Section
3. The only one stated there is ordinary and special.
II. CIVIL ACTIONS; CLASSIFICATION AS TO CAUSE OF FOUNDATION:
REAL, PERSONAL or MIXED ACTIONS
An action is either a real or personal action. And that is important because of Rule 4 the
venue for real actions is different from the venue for personal actions.
A REAL ACTION is briefly described as an action where the issue or the subject involved is
title, ownership, possession or interest over a real property like accion publiciana, forcible entry,
unlawful detainer, foreclosure of mortgage or real property, partition of real property. (c.f.
Section 19, BP 129 controversy relates to real property)
On the other hand, when the issue is not one of those meaning, it is founded on privity of
contract, or on quasi-delict, such as actions for a sum of money, or damages, for the enforcement
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or resolution of a contract, or for recovery of personal property, these are the PERSONAL
ACTIONS. (Casilan vs. Tomassi, 90 Phil. 765; Cachero vs. Manila Yellow Taxicab, 101 Phil. 523;
Bautista vs. Piguing, L-10006, Oct. 31, 1957)
Some textwriters give a third classification: the MIXED ACTIONS where there is a mixture of
real and personal actions. Mixed actions are such as pertain in some degree to both real and
personal and, therefore, are properly reducible to neither of them, being brought for the specific
recovery of land and for damages sustained in respect of such land. (Dela Cruz vs. Seminary of
Manila, 18 P{hil. 330)
Like an action for recovery of a piece of land with damages. So thats a mixed action.
Although it is more of real rather than personal. If the damage is only incidental, then it is more
of a real action rather than a personal action like the case of TACAY. The claim for damages is
incidental, the main purpose is recovery of possession of land.
III. CIVIL ACTIONS; CLASSIFICATION AS TO THE PLACE OF FILING:
LOCAL ACTIONS and TRANSITORY ACTIONS
A LOCAL ACTIONS is an action which can only be instituted in a particular place whereas a
personal action follows the residence of the parties. Good examples of local actions are real
actions. Real actions are also automatically local actions. They can only be instituted in the place
where the property is situated. This is already provided by law (e.g. accion publiciana, forcible
entry, unlawful detainer can only be filed where the land is situated.)
TRANSITORY ACTIONS are those which follow the party wherever he may reside. (1 Am.
Jur. 430) Personal actions are transitory it is based on where the plaintiff or where the
defendant resides at the option or election of the plaintiff. It is based on the residence of the
parties.
We will go to the fourth classification as to object of the suit.
IV. CIVIL ACTIONS; CLASSIFICATION AS TO OBJECT:
ACTIONS IN PERSONAM, IN REM and QUASI IN REM
ACTIONS IN PERSONAM vs. ACTIONS IN REM
How do we differentiate one from the other? The SC in the past has given the definition in
some cases which definition appears in many books as quoted by authors. But the trouble with
these definitions, sometimes, the more you read it the more you dont understand what the
definition is all about. For example:
If the technical object of the suit is to establish a claim generally against
some particular persons, with a judgment which, in theory, at least, binds his
body. or to bar some individual claim or objection, so that only certain persons
are entitled to be heard, the action is IN PERSONAM. (Grey Alba vs. Dela Cruz, 17
Phil. 49; Sandejas vs. Robles, 81 Phil. 421)
But, if the object of the suit is to bar indifferently all who might be minded
to make an objection of any sort against the rights sought to be established, and
if anyone in the world has a right to be heard on the strength of alleging facts
which, if true, show an inconsistent interest, the action is IN REM. (Grey Alba vs.
Dela Cruz, 17 Phil. 49; Sandejas vs. Robles, 81 Phil. 421)
To simplify the definition:
ACTION IN PERSONAM any judgment that the court will render in that case binds only
the parties to the action and their privies or their successors-in-interest.
ACTION IN REM any judgment with the court will render in the case binds not only the
parties to the case but the whole world, then the action is in rem.
To follow the language of the SC in the case of:
CHING vs. COURT OF APPEALS
181 SCRA 9
HELD: Actions in personam and actions in rem differ in that the former are
directed against specific persons and seek personal judgments, while the latter
are directed against the thing or property or status of a person and seek
judgments with respect thereto as against the whole world.
Action in personam; EXAMPLE:
ILLUSTRATION: Recovery of land, accion publiciana: Momma Jessa vs. Little Lulu. Sabi ng
court: Alright Momma Jessa, you are the winner and you are entitled to the land. Now, here
comes Baby Maya. Momma Jessa says, Wala na iyan, tapos na iyan. In the case, that was already
decided that I am entitled. Sabi ni Baby Maya, Ah, that is between you (Momma Jessa) and
Little Lulu. But Im different. I have evidence to prove that my right is better than yours. I am not
bound by that decision.
Q: Is the judgment rendered in the case between Momma Jessa and Little Lulu binding on
Baby Maya?
A: NO, because Baby Maya is not a party to that case. She cannot be bound by a judgment
where she is not a party. Hence, the action between Momma Jessa and Little Lulu is an action in
personam.
Action in Rem; Example:
ILLUSTRATION #1: Action for annulment of marriage or declaration of nullity of marriage.
Suppose the husband (Joshua) files a case against his wife (Tekla) to annul their marriage. After
trial, the court rendered judgment annulling the marriage of Joshua and Tekla. It became final.
Now, the status of the parties is SINGLE na naman because the marriage is annulled. Joshua
meets another girl, Maying, and courted her and told Maying, I would like to marry you. Maying
said, I cannot marry you because I know you are married. How can I marry you when you are
already married? Joshua said, Not anymore. Im no longer married because my marriage with
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Tekla is already annulled and here is the decision. So, Im single. According Maying, No, I am
not bound by that judgment because I was not a party to that case.
Q: When the court ruled in the case between Joshua and Tekla that the marriage is
annulled and that now you are single, is the judgment binding on anybody?
A: YES. Your status is single and whether you are a party in the case or not, you are
bound by the judgment because it is directed against the whole world. Your status is to be
respected.
ILLUSTRATION #2: When a son, Carlo the Spokes, files a case against the father, Rod the
Tenor ( most outstanding student of Pavarotti ), to be considered a recognized child and the
court said, Yes, you are declared a child of the defendant, Rod the Tenor is now compelled to
recognize you. Your status as a recognized child is not only binding on your father but is binding
on the whole world. Your status is no longer unrecognized.
Take note, an action in rem and in personam have often been confused with the
classification of real and personal action. They sound almost the same. That an action in
personam is also a personal action, or, when an action is in rem it is also a real action it is not
true. That is a different classification. An action could be as to cause it could be real. As to
object, it could be in personam. In the same manner, it could be personal action but an action in
rem. So, these are two different classification.
ILLUSTRATION: Eugenia files a case against Concon to recover the possession of a piece of
land. It is a REAL action. In real action, the subject is possession or ownership of real property.
Any judgment therein binds only the parties, and not the whole world. So, it is also an action IN
PERSONAM. It is a real action as to cause, but as to object, it is in personam.
ILLUSTRATION: Papa Paul filed a case to annul his marriage with his wife. It is a PERSONAL
action because it does not involved his property. It is about status. But it is also IN REM because
the judgment therein is binding the whole world.
So, magka-iba yan!!! As a matter of fact, it is not only students but even lawyers and judges
interchange one with the other. Last year, I was reading the SCRA, I cannot remember the
decision where before deciding, the SC gave a lecture: The trouble with this case, the basic error
of the court is that it confused real action with an action in rem and an action in personam with a
personal action a real action could be in personam and a personal action could be in rem. So do
not be confused.
QUASI IN REM
Text writers gave a sort of third classification as to object. This is called action quasi in rem.
QUASI means almost. So, quasi in rem is almost in rem. Actually, it is in personam but almost in
rem.
Q: Define action quasi in rem.
A: An action quasi in rem is actually in personam because it is directed only against a
particular individual but the purpose of the proceeding is to subject his property to the
obligation of lien burdening it. The object of the case is the sale or other disposition of property
of the defendant over which you have a right or lien over the property.
EXAMPLE: Foreclosure of Mortgage. Somebody borrows money from you and mortgages
his land as security for the loan. Then later, he cannot pay. You decide to institute foreclosure
proceedings over the mortgage property. I presume you know the object of the foreclosure. If the
property is foreclosed, the property over which you have a lien a right because it is mortgaged
to you that property will be sold at public auction and the proceeds will be given to the
mortgagee or creditor in payment of the obligation.
ILLUSTRATION: An action to foreclose a mortgage is the best example of a civil action quasi
in rem because there is a defendant (mortgagor) and the object of the case is to have the
property mortgaged sold or disposed of in order to satisfy the mortgage lien of the mortgagee. It
is in personam because it is directed only against person who mortgaged to you. But once the
property is foreclosed, practically everybody has to respect it. Wala ka ng right doon sa property.
Naunahan ka na. Thats why it is called quasi in rem.
Or, to borrow the language of the SC in simplifying the term quasi in rem, quasi in rem
means against the person in respect to the res, against the mortgagor in respect to the thing
mortgaged.
CIVIL ACTIONS vs. SPECIAL PROCEEDINGS
Q: Define a special proceeding.
A: Rule 1, Section 3 [c]:
c) A special proceeding is a remedy by which a party seeks to
establish a status, a right, or a particular fact. (2a, R2)
Special proceedings should not be confused with a civil action. Special Proceedings are
governed by Rules 72-109 of the Rules of Court. You look at the table of contents and you will see
them. That is a third year subject.
BAR QUESTION: Distinguish a civil action from a special proceeding.
A: The following:
1.)
2.)
A CIVIL ACTION is one by which a party sues another for the enforcement or
protection of a right, or the prevention or redress of a wrong, whereas,
A SPECIAL PROCEEDING is a remedy by which a party seeks to establish a status,
a right, or a particular fact;
In a civil action, there are two (2) definite and particular adverse parties, the
party who demands a right, called a plaintiff, and the other whom the right
is sought, called a defendant, whereas,
In a SPECIAL PROCEEDING, while there is a definite party petitioner, there is no
definite adverse party as the proceeding is usually considered to be against
the whole world;
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3.)
A CIVIL ACTION requires the filing of formal pleadings, whereas

In a SPECIAL PROCEEDING, relief may be obtained by mere application or
petition;
4.)
The period to appeal in CIVIL ACTIONS is generally 15 days and the requirement
is the filing of a notice of appeal, whereas
In SPECIAL PROCEEDINGS the period to appeal is 30 days and aside from notice
of appeal, the law requires the filing of a record on appeal.
Of course the basic distinction is found in Section 3 a civil action is one by which a party
sues another for the enforcement or protection of a right, or the prevention or redress of a
wrong. Whereas, a special proceeding is a remedy by which a party seeks to establish a status, a
right, or a particular fact.
The object of a civil action is to enforce or protect a right or to prevent or redress a wrong.
But the object of a special proceeding is only to establish a status, a right or a particular fact.
If a creditor sues the debtor to collect an unpaid loan, is that a civil action or a special
proceeding? That is a civil action because the creditor wants to enforce or protect his right to
collect. The creditor is compelling the debtor to pay. It is adversarial.
A good example of a special proceeding is a petition for ADOPTION. It is a special
proceeding because the purpose is to establish a status of parents and child who were not
related to each other. In other words, to create a relation of parents and child under the law
between two people. The procedure in the law of adoption will be studied in the subject on
special proceedings.
There was one article which I read about adoption. This is how the author describes
adoption:
Adoption is one of the sacred mysteries of the law. It concerns the
making of a natural person as a legitimate child of another person without
the intervention of sex. A man becomes a father of the child he did not sire.
A woman becomes the mother of a child she did not bear. It is through the
magic or fiction of the law that adopters become parents of children
unrelated to them by blood, or if related, the relationship is one of
illegitimacy.
So you can adopt you own illegitimate child for the purpose of improving his status. So,
when you file a petition for adoption, you are not suing somebody to enforce or protect a right or
prevent or redress a wrong. The purpose is to create a status of parent and child between 2
people who are not related to each other.
And when you file a petition for adoption, you are not filing a case against anybody. Wala ka
namang kalaban, eh. There is a petitioner, the one who files, but there is no definite party. But it
is directed against the whole world because once the adoption is granted, then, as far as the
whole world is concerned, they have to respect the status that this is now your child. Kaya nga, it
is in rem. Generally, special proceedings are in rem.
But since it is directed against the whole world, anyone in the world can come forward and
oppose the petition. Kaya nga may publication. You go to court and file your opposition. So wala
kang kalaban na particular person but in reality, anybody in the world can come forward and
oppose it. That's the difference between a special proceeding and a civil action.
Sec. 4. In what cases not applicable. - These Rules shall not apply to
election cases, land registration, cadastral, naturalization and
insolvency proceedings, and other cases not herein provided for,
except by analogy or in a suppletory character and whenever
practicable and convenient. (R143a)
The Rules of Court do not apply to certain proceedings in court. A good example is Section 2
these rules shall apply in all the courts except as otherwise provided by the SC.
Q: What court proceedings where the Rules of Court are not applicable?
A: Election cases, land registration cases, cadastral cases, naturalization cases, insolvency
proceedings, and other cases not herein provided for except by analogy of for suppletory
purposes.
In these cases, the Rules of Court are suppletory in character. In case of conflict between
election law and the Rules of Court, forget the Rules of Court. But when the Election Code is
silent, you apply the Rules of Court by analogy or for suppletory purposes.
There are some election cases which fall within the jurisdiction of the courts, not
necessarily COMELEC. For example, violation of election code where the party may be adjudged
to go to jail. That is a criminal case. That is governed by the rules on criminal procedure. It is
more on imprisonment.
Sec. 5. Commencement of an action. - A civil action is commenced by
the filing of the original complaint in court. If an additional defendant
is impleaded in a later pleading, the action is commenced with regard
to him on the date of the filing of such later pleading, irrespective of
whether the motion for its admission, if necessary, is denied by the
court. (6a)
Q: When is a court action deemed commenced?
A: A civil action is commenced by the filing of the original complaint in court . Of course this
is not really complete. The filing of the original complaint in court must be accompanied by the
payment of the correct docket fee. A complaint is not deemed filed until the docket fee is paid.
This is important to determine the exact date that the action has commenced because it is from
that moment that the running of the prescriptive period is interrupted.
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The second sentence of Section 5 states that, If an additional defendant is impleaded in a

later pleading, the action is commenced with regard to him on the date of the filing of such later
pleading
Example: Today (November 19, 1997), I filed a complaint against A. So, the action is
commenced on Nov. 19, 1997. However next month, say, December 19, if there is an additional
defendant, the date of the commencement of the action with regards to the additional defendant
is not the date when the original action is filed, but on the date when he was included in the
amended pleading.
Last section. How do you interpret or construe the Rules of Court?
Sec. 6. Construction. - These Rules shall be liberally construed in
order to promote their objective of securing a just, speedy and
inexpensive disposition of every action and proceeding. (2a)
So, the Rules of Court shall be interpreted liberally in order to promote their object which is
to promote their objective of securing a just, speedy and inexpensive disposition of every action
and proceeding. The purpose of Procedural Law is to hasten litigation. So you do not interpret it
to prolong a case. That is based on the principle of liberal construction. According to the SC in
one case commenting on this:
DE GUZMAN vs. SANDIGANBAYAN
256 SCRA 171, (en banc)
HELD: The Rules of Court was conceived and promulgated to set forth
guidelines in the dispensation of justice but not to bind and chain the hand
that dispenses it, for otherwise, courts will be mere slaves to or robots of
technical rules, shorn of judicial discretion. That is precisely why courts in
rendering real justice have always been, as they in fact ought to be,
conscientiously guided by the norm that when on the balance, technicalities
take a backseat against substantive rights, and not the other way around.
Truly then, technicalities, should give way to the realities of the situation.
So, the purpose of procedure is to help the hand that dispenses justice and not to tie these
hands. Otherwise, the courts will become mere robots. And, as much as possible, courts should
avoid technicalities. To give way to the realities of the situation.
In one case, Lawsuits, unlike duels, are not to be won by a rapiers thrust. (Alonzo vs.
Villamor, 16 Phil. 315) Hindi yan espadahan na ang unang magsaksak, daog . That is not the
concept of litigation. You do not lie in ambush. Thats another pronouncement.
Thats why the SC said in another case:
SANTOS vs. COURT OF APPEALS
198 SCRA 806
HELD: Procedural rules are not intended to hamper litigants or complicate

litigation but, indeed, to provide for a system under which suitors may be heard
in the correct form and manner and at the prescribed time in a peaceful
confrontation before a judge whose authority they acknowledge. The other
alternative is the settlement of their conflict through the barrel of a gun.
Meaning, the purpose of the rules is for people to fight each other in a civilized way. If you
cannot accept the judicial system, what is your alternative? The only alternative is to shoot your
opponent. We will settle our conflict through the barrel of a gun. Barilan na lang tayo. So if you
do not accept the system of justice, that is your alternative.
For all its shortcomings and its defects, the judicial system is still the civilized way of
dealing with your opponent.
BAR QUESTION: When may lapses in the literal observance in the Rules of Court be
excused?
A: In the case of
ETHEL CASE, ET AL vs. FERNANDO JUGO, ET AL
77 Phil. 523
HELD: Lapses in the literal observance of a rule of procedure will be
overlooked:
1.) when they do not involved public policy;
2.) when they arose from an honest mistake or unforeseen
accident;
3.) when they have not prejudiced the adverse party; and
4.) when they have not deprived the court of its authority.
One final note, while it is true that the Rules of Court should be liberally construed as a
general rule, there are certain provision which according to the SC, should be strictly construed
because they were intended precisely to minimize delay.
A good example would be provisions which prescribe the time during which certain acts
are going to be done, like the filing of an answer, because if you will disregard this, it will
promote more delay rather than expedite litigations.
Another example is the filing of a notice of appeal. Hindi mo pwedeng palitan yan. These are
the provisions which are to be strictly construed because while it is true that the Rules of
Procedure are to be liberally construed, it is not a license to completely ignore these rules. Even
the SC made the warning. Like in the cases of
ANTONIO vs. COURT OF APPEALS
167 SCRA 127
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HELD: It is the common practice of litigants who have no excuse for not
observing the procedural rules to minimize the same as mere technicalities. Then
they cry for due process. These procedural rules are in fact intended to ensure an
orderly administration of justice precisely to guarantee the enjoyment of
substantive rights.
LIMPOT vs. COURT OF APPEALS
170 SCRA 367
HELD: Procedural rules are not be belittled or dismissed simply because
their non-observance may have resulted in prejudice to a party's substantive
rights, as in this case. Like all rules, they are required to be followed except only
when for the most persuasive of reasons they may be relaxed to relaxed to
relieve a litigant of an injustice not commensurate with the degree of his
thoughtlessness in not complying with the procedure prescribed. While it is true
that a litigation is not a game of technicalities, this does not mean that the Rules
of Court may be ignored at will and at random to the prejudice of the orderly
presentation and assessment of the issues and their just resolution.
This reminds me of a lawyer who did not comply with the rules and he was arguing that the
rules should be liberally construed. And then the judge says: There is a thin line between liberal
construction of the rules and gross ignorance of the rules! Yaan! It is either you did not follow
the rules strictly or you do not really know the rules.
ORDINARY CIVIL ACTIONS
Rule 02
CAUSE OF ACTION
SECTION 1. Ordinary civil actions, basis of. - Every ordinary civil
action must be based on a cause of action. (n)
Section 1 of Rule 1 is entitled cause of action. That is an entirely new title, which is not
found in the 1964 Rules. Section 1 expresses the principle that every ordinary civil action must
be based on a cause of action. That is a new provision but it is a fundamental principle all along
you cannot have a case unless you have a cause of action.
As a matter of fact under Rule 16, one of the grounds for a motion to dismiss is that your
pleading states no cause of action.
Sec. 2. Cause of action, defined. - A cause of action is the act or
omission by which a party violates a right of another. (n)
Now, for the first time, Section 2, which is also a new provision, has incorporated the
definition of what is a cause of action. However, again, it is not a new principle because even
under the 1964 Rules we must such definition is already recognized.
Q: Define cause of action.
A: CAUSE OF ACTION is an act or omission by which a party violates a right of another.
Cause of Action; ELEMENTS:
Q: What are the ELEMENTS of cause of action ?
A: There are supposed to be 3 main elements:
1. a right pertaining to the plaintiff;
2. a correlative obligations of the defendant; and
3. violation of plaintiff's right by the defendant (also called delict)
You remove one of these and there is no cause of action. You think of any case under the
sun, it must have all these elements. Now, there is a fourth element added by some cases and
commentators the element of damage suffered by the plaintiff. So based on that, these are the
elements of a cause of action:
1. a RIGHT pertaining to the plaintiff;
2. a CORRELATIVE OBLIGATIONS of the defendants;
3. a VIOLATION of plaintiffs right; and
4. DAMAGE suffered by the plaintiff.
Even if there is violation, if there is no damage, then what relief are you asking for? There
can be no action where no injury is sustained.
As a matter of fact, in a recent case, the SC remarked that wrong without damage or damage
without wrong does not constitute a cause of action since damages are merely part of the
remedy allowed for the injury caused by a beach or wrong.
There can be damage without injury in those instances in which the loss harm was not the
result of a violation of a legal duty. These equations loss are after all called damnum absque
injuria. Another latin maxim, accio non datur non damnificato, which means there could be no
action where no injury is sustained. So that is part of the definition of cause of action. Damage
without injury does not create any cause of action.
So the elements are: right, obligation, violation and damage. These are the four elements of
a cause of action. You cannot imagine of any civil case where the 4 elements are not present.
EXAMPLE: A debtor borrows money from creditor. Then, it is already due. Ayaw pa ring
magbayad. Lets try to find out the elements.
RIGHT - the right of the creditor to get back his money;
OBLIGATION The defendant has the obligation to pay back the loan under the law on
contracts;
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VIOLATION or delict or wrong the account fell due and the debtor is supposed to
pay the creditor, but the former did not pay the latter;
DAMAGE. the creditor cannot get back his money.
So, the 4 elements are there. Of course, when you file a complaint against somebody, you do
not prepare the complaint by enumerating the elements. In other words, nasa istorya man yan
ba. It is up for the defendant to analyze. It is the duty of the lawyer to analyze the complaint
whether the 4 elements are present.
ANOTHER EXAMPLE: Damages arising from culpa aquiliana. You are crossing the street
and a driver just bump you there. And you are hospitalized. You fail to report for work.
RIGHT it is the right of every person not to be molested. You have the right to walk
peacefully and not to be harmed;
OBLIGATION it is the obligation of every person driving to be careful so that he will
not bump other people. You do not have to enter into a contract with a
person saying you will not bump him;
DELICT or wrong because of your recklessness, you violated his right by injuring
him;
DAMAGE I have to spend money in the hospital and I lost my income.
The 4 elements are present. So there is a cause of action. In other words, you cannot
imagine a civil case where the 4 elements are not present.
ANOTHER EXAMPLE: Defendant borrowed money from you last year payable in November
1998. And despite demands, still he has not paid you. Now, is there a cause of action?
RIGHT the creditor has the right to collect;
OBLIGATION every debtor has the obligation to pay;
DAMAGE I have not recovered the money;
DELICT or wrong there is NO delict yet.
Why? There is no delict yet because the account is payable next year pa. So, it is still
premature to file a collection case now because one element is missing. So, if I am the lawyer of
the defendant, I will question your complaint. It is not based on a cause of action. That is
dismissable under Rule 16.
CAUSE OF ACTION vs. RIGHT OF ACTION
And of course, as part of the study of cause of action, we must be able to differentiate it
from the so-called right of action. These are basic fundamental issues in Civil Procedure:
Distinguish a cause of action from a right of action (bar question).
Q: Define right of action.
A: Right of action is the right of the plaintiff to bring an action and to prosecute that action
to final judgment. (Marquez vs. Varela, 92 Phil. 373)
Q: What are the ELEMENTS of a right of action?
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A: There are two (2) elements:

1.)
2.)
the plaintiff must have a good cause of action; and

the must have performed all conditions precedent to the filing of the action.
So, you cannot have a right of action unless you first have a cause of action. That is why the
SC said in the case of
DE GUZMAN, JR. vs. COURT OF APPEALS
192 SCRA 507
HELD: The right of action springs from the cause of action, but does not
accrue until all the facts which constitute the cause of action have occurred.
When there is an invasion of primary rights, then and not until then does the
adjective or remedial law become operative, and under it arise rights of action.
There can be no right of action until there has been a wrong a violation of a
legal right and it is then given by the adjective law.
So, there can be no right of action until there has been a wrong, a violation of a legal right.
There can be no right of action unless there is first a cause of action.
And you must comply with the conditions precedent. You cannot file a case unless you
comply with certain conditions and the best illustration of this element is the case of
PHIL. AMERICAN GENERAL INSURANCE CO. vs. SWEETLINES
212 SCRA 194
FACTS: This involves a shipped cargoes from Manila to Davao but the goods
were damaged. Based on damaged cargoes, the consignee filed a case against the
carrier. Actually, in the bill of lading, there is a stipulation that if the consignee
wants to file a case arising from the contract of carriage against the carrier, the
consignee must first send a notice of loss to the carrier and then if the carrier will
not honor it, and that is the time the consignee can file a case before the court.
Now, he went to court directly without filing a notice of loss to the carrier.
ISSUE: Whether or not there is a right of action.
HELD: There is NO right of action because the consignee did not comply
with the conditions precedent.
The right of action does not arise until the performance of all conditions
precedent to the action. Performance or fulfillment of all conditions precedent
upon which a right of action depends must be sufficiently alleged, considering
that the burden of proof to show that a party has a right of action is upon the
person initiating the suit.
More particularly, where the contract of shipment contains a reasonable
requirement of giving notice of loss of or injury to the goods, the giving of such
notice is a condition precedent to the action for loss or injury or the right to
enforce the carriers liability.
BAR QUESTION: Distinguish a CAUSE OF ACTION from a RIGHT OF ACTION.

A: The following are the distinctions:
1.)
Cause of action is the delict or wrong committed by the defendant, whereas

Right of action refers to the right of the plaintiff to institute the action;
2.)
Cause of action is created by substantive law (e.g. rights under the Civil Code),
whereas
Right of action is regulated by procedural law;
Right of action is a remedial right belonging to some persons, while
cause of action is a formal statement of the operative facts that give rise to
such remedial right. (De Guzman vs. CA, supra)
3.)
Right of action may be taken away by the running of statute of limitations, by

estoppel or other circumstances which do not affect at all the cause of action.
EXAMPLE: When a debtor borrows money and he does not pay. His failure
to pay is the cause of action. After 10 years, the right to collect has prescribed
and you cannot recover anything. Actually, what is barred is his right of action,
not the cause of action because the moment he does not pay, there is already a
wrong and you cannot erase a wrong. The cause of action is not affected by
prescription. In fact, the Civil Code provides that the obligation is converted into
natural obligation, which is based on equity rather than a right.
Because sometimes, you say that the action has prescribed. So you are invoking the law on
prescription. But what has prescribed? Is it the cause of action? No. The cause of action does not
prescribe. What has prescribed is the right of action. Yaan!
SPLITTING A CAUSE OF ACTION
Sec. 3. One suit for a single cause of action. - A party may not institute
more than one suit for a single cause of action. (3a)
Section 3 is known as the rule against splitting the cause of action.
Q: What is splitting a single cause of action?
A: Splitting a cause of action is the practice of dividing one cause of action into different
parts and making each part a subject of a different complaint. (Bachrach vs. Icarigal, 68 Phil.
287)
That practice is expressly prohibited by law as expressed in Section 3, A party may not
institute more than one suit for a single cause of action. The rule is simple: If there is one cause of
action, you file only one case. You cannot file two, three or four cases arising out of one cause of
action, otherwise you are splitting it.
EXAMPLE: In a suit under a promissory note, you file a case to collect the principal; another
action to collect the interest; another action to collect attorneys fees. So, there is only one note
and you sue me three times but there is only one cause of action. Now, under the law, you have
split your cause of action. You should file only one case to recover the principal and the interest
as well as the attorneys fees.
EXAMPLE: Damage (injury) suit: Carlo, while walking was bumped by a vehicle. He filed one
case against the owner of the vehicle for reimbursement of hospital expenses; one case to
recover his expenses for medicine; another one for doctors fees; then another case for the lost
income. Practical by you have filed four cases arising from one cause of action. Isang banggaan
lang, naging apat ang kaso? Again, the Carlo here has engaged in the prohibited practice of
splitting cause of action. The correct procedure is that he should file one action and demand the
recovery of all these expenses and the lost income.
Sec. 4. Splitting a single cause of action; effect of. - If two or more
suits are instituted on the basis of the same cause of action, the filing
of one or a judgment upon the merits in any one is available as a
ground for the dismissal of the others. (4a)
Q: And what are the effects of splitting a cause of action?
A: Under Section 4, the following are the effects:
1.)
2.)
The filing of one is available as a ground for the dismissal of other. That is what you
call LITIS PENDENTIA there is another action pending between the same parties for
the same cause. This is one ground for dismissal of a case (Rule 16 Motion to
Dismiss, Section 1 [e])
So you file a case. And while it is pending, you file another case against the
same party with the same cause of action. Under Section 4, one of them is
subject to dismissal.
a judgment upon the merits in any one is available as a ground for the dismissal of
the others. That is what you call barred by prior judgment or RES ADJUDICATA, which
is also a ground for dismissal under Rule 16, Section 1 [f].
EXAMPLE: A case was already decided a long time ago. Now, you are
reviving the same case you are filing again. Under Section 4, the judgment in
the first case years ago would be cited as a basis for the dismissal of the second
case.
Q: What is the reason or philosophy for the rule against splitting a single cause of action?
A: The rule against splitting a cause of action is intended to prevent repeated litigations
between the same parties in regard to the same subject of controversy; to protect the defendant
from unnecessary vexation; and to avoid the costs incident to numerous suits. (Bachrach vs.
Icarigal, supra; Bacolod City vs. San Miguel, Inc., L-25134, Oct. 30, 1969)
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Actually, the reason is common sense eh to protect the defendant from unnecessary
vexation. Why create two cases when you have only one cause of action? And why make me
spend more? Magasto yung balik-balik sa court. It becomes an expensive process. And why
should you harass somebody when he only committed one wrong? You file a case against him
but do not harass him more than once. Nemo debet vis vesare procuna em iyadens cusa No man
shall be twice vexed for one and the same cause.
SINGLENESS OF A CAUSE OF ACTION
Q: How do you determine the singleness of a cause of action?
A: The singleness of a cause of action is determined by the singleness of the delict or wrong
committed by the defendant and not by the number of remedies that the law grants the injured
party. Meaning, a single delict may give rise to two or more possible remedies but it does not
mean to say the injured party can avail of all those remedies simultaneously or one after another.
(Bachrach vs. Icarigal, supra; David vs. De la Cruz, L-11656, April 18, 1958)
EXAMPLE: Obligations and Contracts: A violation or a breach of contract could give rise to a
civil action for specific performance or a civil action for rescission of contract. However, it does
not mean to say that the injured party can file both or one after the other. Otherwise, he will be
splitting his cause of action.
EXAMPLE: There is the Recto Law (on Sales) on the remedies of an unpaid seller of
personal properties. I think the law grants three remedies (1) rescind the contract of sale; (2)
exact fulfillment of obligation; and (3) foreclosure of mortgage. But even the law on Sales is very
clear: the choice of one automatically bars resort to the other because it will be against splitting
the cause of action.
EXAMPLE: Credit Transactions: A bank has two (2) possible remedies against a debtor for
non-payment of a loan secured by a mortgaged say, piece of land: (1) foreclose the mortgage on
the land; or (2) file an action to collect the loan. Here, the bank cannot file a case the debtor to
collect the loan and at the same time file an action to foreclose the mortgage for it will be
splitting the cause of action. So it is either you enforce the principal contract of loan, or, you
enforce the accessory contract of mortgage. This is what happened in the case of
DANAO vs. COURT OF APPEALS
154 SCRA 446
FACTS: The Danao spouses borrowed money from the bank, mortgaged
their property and then they failed to pay. The bank filed a civil action to collect
the loan. After filing a civil action to collect the loan, the bank instituted an action
to foreclose the mortgage.
HELD: Anent real properties in particular, the Court has laid down the rule
that a mortgage creditor may institute against the mortgage debtor either a
personal action for debt or a real action to foreclose the mortgage. In other
words, he may pursue either of the two remedies, but not both.
Evidently, the prior recourse of the creditor bank in filing a civil action
against the Danao spouses and subsequently resorting to the complaint of
foreclosure proceedings, are not only a demonstration of the prohibited splitting
up of a cause of action but also of the resulting vexation and oppression to the
debtor.
So those are examples of splitting a cause of action and illustrations of the rule that one
cause of action may give rise to two or more remedies but it does not follow that you can avail of
all those remedies. One is enough, otherwise, you will be splitting again you cause of action.
RULES IN DETERMINING THE SINGLENESS OF A CAUSE OF ACTION

Now, with respect to splitting a cause of action, you must familiarize yourselves on how this
rule is applied to breach of contract and if there are several stipulations. Sometimes it is easy to
determine whether there is one cause of action. Sometimes it is difficult. Sometimes you get
confused, ano ba ito? Isa lang ba ito o more than one?
RULE #1 (General Rule):
A contract embraces only one cause of action
because it may be violated only once, even if it
contains several stipulations. (Quioque vs. Bautista, L13159, Feb. 28, 1962)
EXAMPLE: Pauline enters into a contract with Nudj which contains 3 stipulations: (#1) that
next month, Pauline will deliver to Nudj 100 sacks of rice; (#2) on the same date, Pauline will
also deliver to Nudj 100 sacks of corn; and (#3) on the same date, Pauline will also deliver to
Nudj 100 sacks of sugar. When the day arrived, nothing was delivered. So three stipulations were
violated.
Q: How many causes of action does Nudj have against Pauline?
A: ONE. The contract is only one cause of action even if it contains several stipulations. The
cause of action is not based on the number of paragraphs violated but on the contract itself.
RULE #2 (Exception to the General Rule):
A contract which provides for several
stipulations to be performed at different times gives
rise to as many causes of action as there are violations.
(Larena vs. Villanueva, 53 Phil. 923)
EXAMPLE: A loan with a promissory note where the principal amount is payable in
installment. There is one promissory note where the loan is P300,000. And then the first
installment is payable this year (1997). And then the second installment is payable in 1998 and
the third installment is payable in 1999 without any acceleration clause. So, there is only one
contract of loan but the principal is payable in three installments at different times.
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For non- payment of the first installment this year (1997), the creditor can file one case. So
P100,000 for 1997 one cause of action.
Q: Next year, he did not pay the second installment, can the creditor file another case?
A: YES, because this time it is the exception. Every installment is one cause of action even if
there is only one note. Remember that they are to be performed at different times.
RULE #3 (Exception to the exception):
All obligations which have matured at the time of
the suit must be integrated as one cause of action in
one complaint, and those not so included would be
barred. (Larena vs. Villanueva, 53 Phil. 923)
EXAMPLE: In 1997, the debtor did not pay but the creditor did not file any case, pinabayaan
lang niya. Then in 1998, the second installment was not also paid. So dalawa na. The total claim
now is P200,000. So the creditor said, there are two unpaid installments1997 and 1998! So
dalawa na, I will file two cases.
Q: Is the creditor correct?
A: He is wrong. Isahin mo na lang yan. When all the installment are already due and the
creditor has not filed any case for the collection of the first installment, this time, when he files
for collection of the unpaid second installment, everything must be integrated. So there should
only be one complaint for P200,000 representing the first and second installments. If you do not
file a claim for one, it is deemed barred.
So for example, if you will wait for the entire note to mature, you cannot apply rule 2. You
should only file one action for P300,000 and you go back to the general rule.
RULE #4 (Exception to Rule #2):
However, when the failure to comply with one of
several stipulations in a continuing contract
constitutes a total breach, a single cause of action for
damages, actual as well as prospective, arises from
such breach. (Blossom & Co. vs. Manila Gas Corp., 55
Phil. 226)
EXAMPLE: This year the first installment fell due. So the creditor demanded payment for
the first installment from the debtor which the latter denied,! The signature in the note is not
mine!
Now, in that kind of statement, he is not only repudiating the first installment. He is
repudiating the entire note. So under rule #4, the creditor can file a case for the entire loan of
P300,000 because it has been repudiated. If you only file only one for the P100,000 which fell
due, then next year, file na naman, it will be useless because he will still maintain the same
position, Wala akong utang sa iyo! Tigas ng ulo! So you do not wait anymore for the 2nd and
3rd installments to fall due. You file only one case for the entire breach. There is a total breach
for a continuing obligation and there is now only one cause of action for the entire promissory
note
So theses are the basic principles of cause of action that I want you to remember.
JOINDER OF CAUSES OF ACTION
SEC. 5. Joinder of causes of action. - A party may 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:
xxxxx
A party may in one pleading assert, in the alternative or otherwise, as many causes of action
as he may have against an opposing party (opening paragraph of Section 5)
Q: What do you mean by joinder of causes of action?
A: Joinder of causes of action is the provision of the Rules which allows a party to join in
one pleading two or more causes of actions against the opposing party.
PROBLEM: In 1994, the debtor secured a loan of P50,000 payable in 1997. In 1995, a
second loan of P50,000 payable in 1997 and then in 1996, another loan of P50,000 payable in
1997. So there are three debts that will fall due in 1997. In 1997 when they became due, the
creditor filed 3 cases against the debtor one case for every promissory note.
Q: Were the cases properly filed?
A: YES because there were 3 promissory notes. But the creditor can file one complaint to
join the three loans. This is called joinder of causes of action. This is different from the case of an
installment where there is only one loan although payable in three installments.
In the problem above, there are 3 loans, 3 promissory notes in 3 different years. So there
are 3 causes of action. And when you file one case for every promissory note, you are not
violating the rule against splitting a cause of action. You are actually not filing more than one
case because there is one case for every loan. However, while you are allowed to file three cases,
Section 5 allows you to file only one case and that is called joinder of causes of action.
THE PRINCIPLE: You cannot file more than one case when you have only one cause of
action but the law allows you to file one case for more than one cause of action.
Q: Under Section 5, is the creditor obliged to file one complaint for the 3 promissory notes?
A: NO, because joinder of causes of action is permissive. He may or may not. So the creditor
may file 3 complaints for the 3 promissory notes, or, file only one complaint asserting the 3
claims for the 3 promissory notes.
ALTERNATIVE and CUMULATIVE Joinder of Causes of Action
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Q: How may causes of action be joined?

A: Causes of action may be joined either: (a) alternatively or (b) cumulatively.
An ALTERNATIVE JOINDER exists when your cause of action is either one or the other. You
are not seeking relief from both but either one.
A CUMULATIVE JOINDER exists when you are seeking relief for all your causes of action.
ALTERNATIVE joinder; Example:
Aileen is the importer of the goods that were shipped on board a carrier. Upon
reaching Davao City, they were departed with the arrastre or stevedoring operator.
The goods were delivered to Aileen in a damaged condition, and then reklamo siya sa
arrastre or stevedoring. Then the arraster says, Damaged na dati yan when it was
unloaded from the carrier. Then when Aileen went to the carrier, Carrier: No, the
damage happened in their (arrastres) custody.
Now, the Aileen here has two (2) possible causes of action: (1) an action against
the stevedoring operator under the contract of depositary under the law on Credit
Transaction; Or, (2) an action against the carrier under the Law on Transportation. So
there are 2 possible causes of action.
Q: Can Aileen file a complaint incorporating the two (arrastre and the carrier)
both as defendants?
A: YES, that is allowed. This is alternative joinder because Aileen is not claiming
from both of them, but either one or the other. Aileen is not sure so she decided to file
a case against both of them. At least isa sa kanila matamaan man ba.
ALTERNATIVE joinder; Another Example:
Chams is a passenger riding on a public utility vehicle which collided with
another vehicle and she is not sure who is at fault. If the fault lies with the other
vehicle, and the driver of the bus where Chams was riding is not at fault, then her
cause of action against the other vehicle is quasi-delict. But if the fault lies with the
driver of the bus where she was riding, her cause of action is culpa contractual. So she
has 2 possible causes of action.
Q: Is it possible for Chams to file one complaint naming both the drivers or both
operators as defendants?
A: YES. Either of them is liable to her. That is alternative joinder of causes of
action.
CUMULATIVE JOINDER; Example:
Pches, who is forever on a diet, files a case to collect 3 unpaid promissory notes
from the John The Yellow Man. Pches is not claiming from either promissory notes
but she is claiming all.
ANOTHER EXAMPLE: Roy The Councilor, an illegitimate child files a case
against his father for compulsory acknowledgment as illegitimate child and support.
There are two causes of action which are gained: an action for recognition and also for
support. This is not alternative actions but rather, these are cumulative. The child is
asking for BOTH relief.
That is why the manner of joining the defendants alternatively or otherwise should be
correlated with Rule 3, Section 13 and Rule 8, Section 2:
RULE 3, SEC. 13. Alternative defendants. - Where the plaintiff is
uncertain against who of several persons he is entitled to relief, he
may join any or all of them as defendants in the alternative, although a
right to relief against one may be inconsistent with a right of relief
against the other. (13a)
RULE 8, SEC. 2. Alternative causes of action or defenses. - A party may
set forth two or more statements of a claim or defense alternatively or
hypothetically, either in one cause of action or defense or in separate
causes of action or defenses. When two or more statements are made
in the alternative and one of them if made independently would be
sufficient, the pleading is not made insufficient by the insufficiency of
one or more of the alternative statements. (2)
Q: When is joinder of causes of action allowed?
A: Under Section 5, joinder of causes of action is allowed under the following conditions:
a.) The party joining the causes of action shall comply with the rules on joinder of
parties;
b.) The joinder shall not include special civil actions or actions governed by special
rules;
c.) Where the causes of action are between the same parties but pertain to different
venues or jurisdictions, the joinder may be allowed in the Regional Trial Court
provided one of the causes of action falls within the jurisdiction of said court and
the venue lies therein; and
d.) Where the claims in all the causes of action are principally for recovery of money,
the aggregate amount claimed shall be the test of jurisdiction. (5a)
a.) The party joining the causes of action shall comply
with the rules on joinder of parties
We will meet joinder of parties when we reach Rule 3, Section 6 which provides that two
(2) or more persons can join as plaintiffs in one complaint or can be joined as defendants in one
complaint, provided there is a common question of fact or law involved in that case.
EXAMPLE: Two or more passengers riding on the same bus, met an accident. All of them
were injured. So lahat sila may cause of action noh? Every passenger who gets injured has a
cause of action. So they decided to file a damage suit.
Q: Can they be joined in one complaint?
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A: YES because there is a common question of fact or law. They are riding on the same bus,
meeting the same accident, against the same operator. So there is a joinder of parties under Rule
3. And if the joinder of parties under Rule 3 is proper, then their causes of action can also be
joined under Rule 2 because the condition is: shall comply with the rules on joinder of parties.
Q: Suppose these passengers were riding on different buses owned by the one operator.
They are on different trips. One is going to Mati; one is going to General Santos; and one is going
to Cotabato. All of them met an accident. Well of course the same kind of case: damage suit,
breach of contract against the same operator. Now, can their causes of action be joined?
A: NO. They cannot be joined because there is no common question of fact or law. The
defense of the operator here is different from his defense there. Meaning, passenger A has
nothing to do with the complaint of passenger B because there is no common denominator
between them. So if you cannot join them under Rule 3, the joinder of causes of action under Rule
2 is also improper.
b.) The joinder shall not include special civil actions
or actions governed by special rules
So, a joinder shall not include special civil actions or actions governed by special rules. The
reason here is simple: Special Civil Actions are governed by certain rules which do not apply to
ordinary civil actions. So a special civil action cannot be joined with an ordinary civil action, or,
an ordinary civil action cannot be joined with an action governed by special rules such as
Election cases, naturalization cases, insolvency cases. In the 1983 case of
UNION GLASS AND CONTAINER CORP. vs. SEC
126 SCRA 31
FACTS: (This is still a good ruling) A stockholder of a corporation who is
also the creditor of the corporation decided to file one complaint against the
corporation asserting several causes of action, among them is his rights as a
stockholder under the Corporation Code and also his rights as a creditor under
the Civil Code.
HELD: The joinder is improper. In the first place, one is governed by a
quasi-judicial body (SEC). So how can the RTC try a case when the cause of action
is pertaining to the SEC and it is governed by the special rules of the SEC? So you
cannot join that.
c.) Where the causes of action are between the same parties but pertain to different
venues or jurisdictions, the joinder may be allowed in the Regional Trial Court provided
one of the causes of action falls within the jurisdiction of said court and the venue lies
therein
PROBLEM: Maceste encroached on two parcels of land belonging to me. In one parcel of
land, the assessed value of that is only P20,000. In another parcel of land, the assessed vaue is P1
million. I would like to file a case of action publiciana against him. Dalawa eh there are 2 lands
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encroached. The first accion publiciana is triable by the MTC (P20,000). The other accion
publiciana is triable by the RTC.
Q: Can I join them?
A: YES, and it must be filed it in the RTC. The jurisdiction of the RTC will prevail.
A: NO, you cannot join them because of paragraph [b] a forcible entry is special civil action
which is also governed by the Summary Procedure. You cannot join a special civil action. So what
is violated here is not paragraph [c] but paragraph [b].
PROBLEM: Maceste encroached on my land in Tagum with an assessed value of P20,000.

And then he encroached in another land of mine in Davao City with an assessed value of P1
million. You will notice that in the Tagum land, the jurisdiction is in the MTC for the case accion
publiciana and the venue is Tagum because the property is situated there. In the other case, the
jurisdiction is in the RTC and the venue is Davao City.
Q: Can I file a case against Maceste joining the 2 cases?
A: YES.
Q: Where is now the governing venue?
A: The venue of the RTC case prevails. Therefore, the case must be filed in Davao City.
d.) where the claims in all the causes of action are principally for recovery of money,
the aggregate amount claimed shall be the test of jurisdiction
PROBLEM: Maceste encroached on my land in Tagum with an assessed value of P1 million.

And then he encroached in another land of mine in Davao City with an assessed value of P1
million also. You will notice that in the Tagum land, the jurisdiction is RTC for the case accion
publiciana. In the other case, the jurisdiction is also in the RTC of Davao City. So both actions,
RTC.
Q: In which RTC will you file the case joining the causes of action?
A: Either Tagum or Davao City because both are RTCs.
PROBLEM: Maceste encroached on my land in Tagum with an assessed value of P20,000.
And then he encroached in another land of mine in Davao City with an assessed value of P20,000
also. In the Tagum land, the jurisdiction is MTC for the case accion publiciana. In the other case,
the jurisdiction is also in the MTC. So both actions, MTC.
Q: Can I join in one complaint the 2 actions?
A: NO, because the law says provided one of the causes of action falls within the jurisdiction
of said court and the venue lies therein. One of them belongs to the RTC. In the example, both
belong to the MTC.
PROBLEM: Maceste encroached on my land more than one year ago and the land has an
assessed value of only P20,000. So if I will file an accion publiciana, it has to be filed with the
MTC. On the other hand, Aaron encroached my other parcel of land more than one year ago and
the assessed value of the land is P1 million. So my cause of action there is also accion publiciana
but triable by the RTC. so I decided to file a case naming both of them as defendants.
Q: Can they be joined under Section 5?
A: NO. The law allows only if it is between the same parties. This time the parties are not
the same. Plus the fact that you might violate paragraph [a] there is no common question of fact
and law between them.
PROBLEM: Maceste encroached on my land in Davao City on month ago and then he
encroached on another land of mine (assessed value of P1 million) in Davao City two years ago.
Therefore, one case is forcible entry triable by the MTC and the latter is accion publiciana triable
by the RTC.
Q: Can I join them under paragraph [c] although they belong to MTC and RTC?
The last is only a repetition of the old rule: TOTALITY RULE. There is nothing new here. So
judiciary law, totality rule, basta sums of money.
SEC. 6. Misjoinder of causes of action. - Misjoinder of causes of action
is not a ground for dismissal of an action. A misjoined cause of action
may, on motion of a party or on the initiative of the court, be severed
and proceeded with separately. (n)
There is misjoinder when two (2) or more causes of action where joined in one complaint
when they should no be joined.
EXAMPLE: A case joining an accion publiciana case and a forcible entry case which is not
proper because a special civil action (forcible entry) cannot be joined. In this case there is
misjoinder of causes of action.
Under Section 6, if there is misjoinder, you do not dismiss the case. The remedy is to ask the
court that the misjoined case be severed and tried separately. Now, ang counterpart nito which is
still present is misjoinder of parties under Rule 3, Section 11:
RULE 3, Sec. 11. Misjoinder and non-joinder of parties. - Neither
misjoinder nor non-joinder of parties ground for dismissal of an
action. Parties may be dropped or added by order of the court on
motion of any party or on its own initiative at any stage of the action
and on such terms as are just. A claim against a misjoined party may
be severed and proceeded with separately. (11a)
So misjoinder of parties and misjoinder of causes of action are not grounds for dismissal of
an action. Just remove the misjoined cause of action or the misjoined party.
Rule 03
PARTIES TO CIVIL ACTIONS
CLASSES OF PARTIES:
I.
II.
III.
IV.
Real Parties in Interest

Representative Parties
Permissive Parties
Indispensable Parties
V.
Necessary Parties
Sec. 1. Who may be parties; plaintiff and defendant. - Only natural or

juridical persons, or entities authorized by law may be parties in a
civil action. The term "plaintiff" may refer to the claiming party, the
counter-claimant, the cross-claimant, or the third (fourth, etc.)-party
plaintiff. The term "defendant" may refer to the original defending
party, the defendant in a counterclaim, the cross-defendant, or other
third (fourth, etc.)-party defendant. (1a)
Q: Who may be parties to a civil case?
A: Only natural or juridical persons or entities authorized by law may be parties in a civil
action. So, you cannot sue or be sued unless you are a person. A dead man cannot sue and he
cannot be sued because he has no more personality.
That is why in one case, Brod Pito sued the firm name, Paningkamot Store. So, it is Brod
Pito vs. Paningkamot Store. The SC said, that is wrong. Paningkamot Store is not a person.
PangaIan ng tindahan iyan. The correct procedure is you sue the owner because he is the real
person. But the defect is not really substantial. It is only a formal defect that can easily be
corrected.
ENTITIES AUTHORIZED BY LAW
Q: Give an example of an entity authorized by law which can be sued although it is not a
person.
A: The best example is Section 15 of this rule.
Section 15. Entity without juridical personality as defendant.- When
two or more persons not organized as an entity with juridical
personality enter into u 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 entity must all be revealed.
Another example of an entity authorized by law which may not be a natural or juridical
person is a labor union under the Labor Code. It is an entity authorized by law to file a case in
behalf of the of its members. Although it may not have been incorporated under the Corporation
Law but registered under the Labor Code.
Q: Who are the plaintiffs, defendants?
A: The term PLAINTIFF may refer to the claiming party, the original plaintiff, the
counter-claimant, the cross-claimant, the third (fourth, etc.)- party plaintiff. So, the word
plaintiff covers them.
The term DEFENDANT may refer to the original defending party, the defendant in a
counterclaim, the cross-defendant, or other third (fourth, etc.)-party defendant. These are
explained in Rule 6, Sections 6, 8 & 11.
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I. REAL PARTIES IN INTEREST

Sec 2. Parties in interest. - A real party in interest is the party who
stands to be benefited or injured by the judgment in the suit, or the
party entitled to the avails of the suit. Unless otherwise authorized by
law or these Rules, every action must be prosecuted or defended in
the name of the real party in interest. (2a)
Q: Who is a real party in interest?
A: A real party in interest is the party who stands to be benefited or injured by the
judgment in the suit. (Section 2)
That is a new sentence taken form jurisprudence because the prior rule never gave a
definition of real parties in interest but jurisprudence gives a definition. That definition is taken
from the leading case of SALONGA VS. WARNER BARNES & CO. (88 Phil. 125). That is exactly how
it is defined and that definition has been repeated through the years.
every action must be prosecuted or defended
in the name of the real party in interest
So a complaint is dismissible if it is not made in the name of the real party in interest.
In an action to recover a piece of land , you do not file a case against tenant. He is not the
real party in interest. You must file the case against the owner of the land.
When you are riding in a bus which collided and you were injured, do not file a case against
the driver for damages. Your contract in not with the drive. Your contract is with the operator.
So you file a case of culpa contractual against the owner or operator.
GENERAL RULE: In a breach of contract, the real parties in interest are the parties to the
contract. So strangers, as a rule, have no business suing in a contract because they are not real
parties in interest.
EXCEPTION: When there is a stipulation in the contract favorable to a third person
(stipulation pour autrui Art. 1311, NCC) Example: Third-Party Liability (TPL) in insurance. A
insured his car with B for TPL. A bumped C. C can file a case against A and B to recover from the
insurance contract.
BALIWAG TRANSIT vs. COURT OF APPEALS
169 SCRA 649 [1989 BAR]
FACTS: A student who was riding in one of the Baliwag buses met an
accident. So, an action was filed where the parents and the injured boy were the
co-plaintiffs against Baliwag Transit. While the case was going on, the boy
entered into amicable settlement with the bus company. Based on the
settlement, Baliwag moved to dismiss the case. The parents objected, We are
objecting because we are also plaintiffs. We didnt know about the settlement.
We were the ones who spent money, therefore it should not be dismissed simply
because our son is withdrawing the case.
HELD: The parents are not the real party in interest. The were not the
passengers. The real parties in a contract of carriage are the parties to the
contract itself. In the absence of any contract of carriage between the
transportation company and the parents of the injured party, the parents are not
real parties in interest in an action for breach of contract.
SALONGA vs. WARNER BARNES
88 Phil. 125 [Bar Problem]
FACTS: Aiza Guadolope decided to go abroad but she has properties in the
Philippines. So she executed a special power of attorney in favor of Ken A.
Sabayah: You have the full power to administer, to collect all my money; to
withdraw my money in the bank; with full power to sue these people who owe me;
with the authority to hire a lawyer; and enter into a contract. Practically, you are
my alter ego. And then Aiza went abroad.
Ken started to manage the property. One of the tenants failed to pay rentals.
So in accordance with the authority, he hired a lawyer. In preparation of the
complaint, it was stated that, Ken, plaintiff vs. Lewee Yoda, defendant.
ISSUE: Is the action properly filed?
HELD: NO. The real property in interest is the principal, the owner of the
property. Ken is only an attorney-in-fact. An attorney-in-fact cannot use in his
own name because he is not the real party in interest. Ken is given the authority
to sue, to manage, hire a lawyer but not as the plaintiff because the real party in
interest is Aiza. The complaint should be name as Aiza, plaintiff vs. Leewee
Yoda, defendant. Yaan!
Q: Suppose Ken, the lawyer will amend the complaint: Ken, as attorney-in-fact of Aiza,
plaintiff vs. Leewee Yoda, defendant is the complaint properly filed.
A: NO. This is even worse because Ken is admitting that he is only an attorney-in-fact. The
more reason na nahalata ka that he is not the real party in interest. If Ken wants to include the
his name, it should be: Aiza, plaintiff, represented by Ken, his attorney-in-fact vs. Leewee Yoda,
defendant.
Q: Does the law require Aiza to come here to file the case?
A: NO. Take note that the law does not require the principal (A) to come back to file the case
because, the law does not say every action must be prosecuted and defendant BY the real party
in interest. Hindi naman sinabing by eh. So an attorney-in-fact can prosecute or defend a party
but in the name of the real party in interest. The real party in interest has submitted to the
jurisdiction of the court by filing the complaint through his lawyer.
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II. REPRESENTATIVE PARTY

Sec. 3. Representatives as parties. - Where the action is allowed to be
prosecuted or defended by a representative or someone acting in a
fiduciary capacity, the beneficiary shall be included in the title of the
case and shall be deemed to be the real party in interest. A
representative may be a trustee of an express trust, a guardian, an
executor or administrator, or a party authorized by law or these
Rules. An agent acting in his own name and for the benefit of an
undisclosed principal may sue or be sued without joining the principal
except when the contract involves things belonging to the principal.
(3a)
Section 3 is a relaxation of Section 2 because under Section 2, you cannot sue and be sued if
you are not the real party in interest. But Section 3 allows one who is not a real party in interest
to sue and be sued in behalf of somebody else. It is possible if you can qualify as a representative
party.
Example: GUARDIAN. Suppose Judee, a minor was injured. A case for damages has to be
filed in behalf of the minor. A minor cannot use and be sued but she is the real party in interest.
The law allows the parents to come in and also be the plaintiff. The parents are what we the
representative party. The law still requires for the minor to be included in the case. The law
states that the beneficiary shall be included in the title of the case and shall be deemed to be the
real party in interest.
Example: TRUSTEE; EXECUTOR; ADMINISTRATOR. Another example is a trustee of an
express trust, or executor or administrator of the estate of a deceased person. When a person
dies, what survives after him is his estate which represent everything that is left behind. This
later on will be given to his heirs. But for the meantime under the law on succession, the
executor or administrator will take charge of his property.
Q: If the estate of the deceased has some collectibles, who will file the case?
A: The administrator or executor as the representative party. If you want to sue the estate,
you should sue the estate through the administrator or executor.
CHING vs. COURT OF APPEALS
181 SCRA 9
FACTS: Angel Maya wanted to sue Devil John who owe her a sum of money.
The problem is, she cannot locate Johns whereabouts. Also, Maya was not
certain whether John is dead or alive. So, to play it safe, what the Maya did was
to file a case against the defendant and/or the estate of defendant. Maya
obtained a judgment against the defendant and/or the estate of defendant.
Later on when the judgment was enforced, it turned out that the John was
already dead (tsk! tsk!) but he has properties left behind. So, they started to take
hold of their properties. Now, the heirs of the John challenged the decision.
ISSUE: Whether or not there was a valid judgment against the

defendant/or the estate of the defendant.
HELD: The decision is void. The decision of the lower court insofar as the
deceased is concerned, is void for lack of jurisdiction over his person. He was not,
and he could not have been validly served with summons. He had no more civil
personality. His juridical personality, that is fitness to be subject of legal
relations, was lost through death (Arts. 37 and 42 Civil Code).
The same conclusion would still inevitably be reached notwithstanding
joinder of Bs estate as co-defendant. It is a well-settled rule that an estate can
sue or be sued through an executor or administrator in his representative
capacity.
So, the Court cited Section 3. In order to bind the estate, you should sue the executor or the
administrator of his estate. So, either way, the case cannot prosper.
The last sentence of Section 3:
An agent acting in his own name and for the benefit of an
undisclosed principal may sue or be sued without joining the principal
except when the contract involves things belonging to the principal.
The agent cannot sue because the principal is the real party in interest. But when an agent
acts in his own name and for the benefit of an undisclosed principal, he may sue and be sued,
EXCEPT when the contract involves things belonging to the principal. Under the exception, the
principal has really to be included. The agent cannot file a case where the principal will lose his
property without being named as part to the case.
Sec 4. Spouses as parties. - Husband and wife shall sue or be sued
jointly, except as provided by law. (4a)
Normally, the husband and the wife should sue and be sued together. Even if the wife
borrowed money alone and you want to sue the woman, still the husband should be included.
Why? In the property relationship between the husband and wife, they are governed by absolute
community or conjugal partnership. Whether you like it or not, the implication of the wife is also
the implication of the husband because of the property relationship.
In the same manner, if the wife wants to collect, even if the husband does not know
anything about it, the husband should still be named as party plaintiff, on the ground again that
in the income that she can get redounds to the benefit of the conjugal partnership.
And there were decided cases in the part where even if for example, a wife sues without the
husband, the defect is not fatal but merely format. The complaint should not be dismissed. All
that is to be done is to amend the complaint impleading the husband. (Cuyugan vs. Dizon, 76 Phil.
80)
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Q: Give an exception to that general rule that husband and wife shall sue or be sued jointly.
A: The EXCEPTION is in case of Complete Separation of Property (Article 145, Family Code),
and under Article 111, Family Code:
Art. 111. A spouse of age may mortgage, alienate, encumber or
otherwise dispose of his or her exclusive property without the
consent of the other spouse and appear alone in court to litigate with
regard to the same. (Family Code)
Sec 5. Minor or incompetent persons. - A minor or a person alleged
to be incompetent, may sue or be sued, with the assistance of his
father, mother, guardian, or if he has none, a guardian ad litem. (5a)
Section 5 is related to Section 3. The minor or incompetent person must be assisted by the
parents and considered as representative party. Incompetent persons includes insane people or
mentally retarded people. They are supposed to be under the custody of other persons, the
guardians. If no guardian, the court has to appoint a guardian called the guardian ad litem.
III. PERMISSIVE PARTY
Sec 6. Permissive joinder of parties. - All persons in whom or against
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 these
Rules, join as plaintiffs or be joined as defendants in one complaint,
where any question of law or fact common to all such plaintiffs or to
all such defendants may arise in the action; but the court may make
such orders as may be just to prevent any plaintiff or defendant from
being embarrassed or put to expense in connection with any
proceedings in which he may have no interest. (6)
Section 6 is known as permissive joinder of parties. This is related to Section 5 [a] of Rule 2
on joinder of causes of action because when there is proper joinder of parties, necessarily there
is also automatic joinder of causes of action. But there could be joinder of causes of action
without joinder of parties.
Q: May two or more persons join in one complaint as plaintiffs? Or can two or more
persons be joined together as defendants?
A: YES, under two conditions, to wit:
1.)
There is a right to relief in favor of or against or against the parties joined in

respect to or arising out of the same transaction or series of transactions; and
2.)
There is a question of law or fact common to the parties joined in the action.
PROBLEM: Suppose some passengers riding a particular common carrier are injured
because of an accident. All of them want to sue the operator of the carrier for damages arising
out of the breach of contract of carriage. Under the Law on Transportation, it possible for each
passenger to file his own case because our causes of action are different from each other. But can
they be joined together in one complaint against the common carrier?
A: YES because there is a common question of law or fact in the causes of actions of the
injured passengers: the evidence is identical; the issues whether the carrier is at fault are the
came; the witnesses for both parties will be the same; the report will be the same; the defense of
the operator against one party will
be the same defense as against the other passenger.
So, since there is a common denominator on their causes of action, they can be joined.
It would be different if the passengers were riding on different buses belonging to the same
company, and all of them met an accident. What happened to Passenger No. 1 does not concern
Passenger No. 2. The evidence will not be the same. So, there is no common denominator no
common question of fact. Therefore, they cannot be joined.
PROBLEM: Suppose a story appeared in the Inquirer where 5 people were called as jueteng
kings. They were allegedly involved in jueteng these are the jueteng kings: Ken, Kenneth,
Francis, Thad and Sheriff. Now, the five of them want to sue the Inquirer for damages arising
from libel. Is it possible for the five (5) people named in the article to file only one complaint
against the editor and publisher of the Inquirer?
A: YES because it is of the same story. Their names appeared in the same story. It is not a
different issue. So there is a common question of act law in their cause of action.
PROBLEM: Myra, while driving a car, bumped another vehicle, injuring the driver and
causing injury to other passengers. So, there are three offended parties : the owner of the vehicle,
the driver of the vehicle , and the passenger. There are three(3) causes of action. Can they join in
one complaint against Myra, the owner of the car which bumped them?
A: YES because there is a common question of fact and law. There is only one accident.
Q: But suppose the three of them will file 3 separate cases against Myra, puwede?
A: Puwede, because permissive joinder of parties is not mandatory. Kaya nga permissive
eh! It is not mandatory but optional although the law encourages permissive joinder of parities.
Q: Why does the law encourage joinder of parties?
A: The following are the reasons:
1.)
2.)
3.)
4.)
to promote convenience in trial;

to prevent multiplicity of suits;
to expedite the termination of the litigation; and
to attain economy of procedure under which several demands arising out of the
same occurrence may be tried together thus avoiding the repetition of evidence
relating to facts common to the general demands.
Now, take note that when there is joinder of parties, there is automatically a joinder of
causes of action. That is why one of the conditions of limitations in joinder of causes of action is
dennisaranabriljdii
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you must observe the rule on joinder of parties. If joinder of parties is improper under Rule 3, the
joinder of causes of action is also proper under Rule 2, Section 5
Principle: WHEN THERE IS JOINDER OF PARTIES, THERE IS ALSO A JOINDER OF CAUSES
OF ACTION. BUT THERE CAN BE A JOINDER OF CAUSES OF ACTION WITHOUT A JOINDER OF
PARTIES.
Paano yun?
EXAMPLE: When there is only one plaintiff and one defendant: Suppose Melissa will secure
three (3) loans from me.
Q: How many causes of action do I have if Melissa will not pay me?
A: Three (3) man ba!
Q: Now, can I join them in one complaint?
A: Yes.
Q: Is there joinder of causes of action?
A: Yes.
Q: Is there joinder of parties?
A: NONE, because there is only one plaintiff and one defendant.
So, there can be joinder of causes of action without joinder of parties because there is only
one plaintiff and one defendant. But if you join parties in Rule 3, automatically, there is joinder of
causes of action. This is the relationship of these two provisions.
Finally, the last two types of parties to the action are the so-called indispensable parties and
necessary parties. (Section 7 and Section 8, respectively)
INDISPENSABLE PARTY and NECESSARY PARTIES
Sec. 7. Compulsory joinder of indispensable parties. Parties in interest
without whom no final determination can be had of an action shall be
joined either as plaintiffs or defendants. (7)
Sec. 8. Necessary party. A necessary party is one who is not
indispensable but who ought to be joined as a party if complete relief
is to be accorded as to those already parties, or for a complete
determination or settlement of the claim subject of the action. (8a)
Take note that under the Old Rules, Section 8, the party there was called proper party.
Now they change the word from proper party to necessary party. This readopts the old name
under the 1940 Rules. Under the old rules, the parties were either indispensable or necessary.
Then under the 1964 Rule, it was changed from necessary to proper. Now, under the new rule,
back to its old name: necessary party.
Q: Distinguish indispensable from necessary party.

A: An INDISPENSABLE PARTY must be joined under any and all conditions, his presence
being a sine qua non of the exercise of judicial power, for without him, no final determination can
be had of the action. (Borlasa vs. Polistico, 47 Phil. 345)
A NECESSARY PARTY ought to be joined whenever possible in order to adjudicate the
whole controversy and avoid multiplicity of suits, but if for some reason or another he cannot be
joined, the court may proceed without him and the judgment shall not prejudice his rights.
(Ibid.)
Q: Give examples of indispensable party.
A: In an action for partition of land, all the co-owners thereof are indispensable parties. (De
Lara vs. De Lara, 2 Phil. 294) In an action for annulment of partition, all of the heirs must be
made parties. (Caram vs. CA, 101 Phil. 315) In an action for recovery of ownership of land, the
person who claims to be the owner of the land is the indispensable party defendant and not the
one in possession as tenant. (Sanidad vs. Cabotaje, 5 Phil. 204; Manza vs. Santiago, 96 Phil. 938)
Q: Give examples of necessary party.
A: In an action for collection of debt instituted by the creditor against the surety, the
principal debtor is merely a necessary party. (Vao vs. Alo, 95 Phil. 495) In an action for
recovery of debt instituted by the creditor against the debtor, the guarantor or surety is merely a
necessary property. (Ibid.) In an action for foreclosure of a real estate mortgage instituted by the
first mortgagee, the second mortgagee is merely a necessary party. (Somes vs. Govt of Phil., 62
Phil. 432)
REVIEW: What is the difference between a surety and a guarantor? The liability of
guarantor to the creditor is only secondary. Meaning, the guarantor is only liable to the creditor
if the principal debtor cannot pay like when the debtor is insolvent. On the other hand, a surety
is principally liable to the creditor whether or not the debtor can pay.
PROBLEM: In credit transactions, there is a creditor, debtor and surety. Debtor borrowed
money from the creditor, then another acted as the surety. Now, suppose the debtor will not pay,
the creditor files now a case against the surety without the debtor. The debtor was not included
in the case.
Q: Can the case proceed even without the debtor being sued?
A: YES, the case may proceed.
Now, the surety may be ordered to pay. Pero bag binayaran ng surety iyong creditor, what
will he do next? He will now sue the principal debtor for reimbursement. Meaning, there is still a
future case. Thus, there could be no complete relief between those who are parties. So, the
debtor is a necessary party, and not indispensable. But it is advisable to join the debtor in one
case, para pag nag-claim ang creditor from the surety, the latter can automatically claim from the
debtor. Pang-one time ba!
PROBLEM: Kuya Mortz borrowed money from Doa Eugenia a.k.a. Genie. Ate Maya is the
guarantor. The Doa Genie filed a case against Kuya Mortz. She did not include the guarantor.
Q: Can the case proceed even without the guarantor?
Q: YES because the guarantor is merely a necessary party. And if the debtor turns out to be
insolvent, the creditor will now file another case against the guarantor.
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REVIEW: What is the difference between joint debtors and solidary debtors? In solidary,
the creditor can collect the whole obligation from any of the debtors without prejudice to the
right of the latter for reimbursement of his share in the obligation from his co-debtors. On the
other hand, in joint obligation, the creditor can only get from a debtor the latters share in the
whole obligation. Meaning, the creditor cannot compel the debtor to pay the share of his codebtor. Kanya-kanya tayo.
PROBLEM: Manuel and Cathy are JOINT debtors of P100,000 (50-50 sharing). Doa Eugenia
is the creditor. Both did not pay Doa Eugenia.
Q: If Doa Eugenia files a case against Manuel only, can the case proceed without Cathy?
A: YES but Doa Eugenia can only collect from Manuel up to P50,000 only because of their
joint obligation. Cathy is only necessary insofar as Manuels share is concern. But Manuel is
indispensable party insofar as his share is concern.
Q: But if Doa Eugenia wants to collect the entire P100,000, what should she do?
A: She should file a case against both Manuel and Cathy.
PROBLEM: Manuel and Cathy are SOLIDARY debtors of P100,000 (50-50 sharing). Doa
Eugenia is the creditor. Both did not pay Doa Eugenia.
Q: If Doa Eugenia files a case against Manuel only, can the case proceed without Cathy?
A: YES and Manuel is required to pay Doa Eugenia the whole amount of the debt because
of solidary obligation. Then Manuel can proceed against Cathy for reimbursement. Be is merely
necessary party.
Sec. 9. Non-joinder of necessary parties to be pleaded. Whenever in
any pleading in which a claim is asserted a necessary party is not
joined, the pleader shall set forth his name, if known, and shall state
why he is omitted. Should the court find the reason for the omission
unmeritorious, it may order the inclusion of the omitted necessary
party if jurisdiction over his person may be obtained.
The failure to comply with the order for his inclusion, without
justifiable cause, shall be deemed a waiver of the claim against such
party.
The non-inclusion of a necessary party does not prevent the court
from proceeding in the action, and the judgment rendered therein
shall be without prejudice to the rights of such necessary party. (8a,
9a)
If you do not implead a necessary party, you must give an explanation why did you not
implead him. The law requires as much as possible that all parties be impleaded to avoid
multiplicity of suits. EXAMPLE: Tato The Hunk files a case against Andre The Hippie, a surety,
without including Sheriff The Punk as the debtor. In the complaint of Tato, he shall explain why
he is not including Sheriff.
Assuming that a necessary party cannot be impleaded, his non-inclusion does not prevent
the court from proceeding with the action. The judgment rendered shall be without prejudice to
the rights of such necessary party.
However, if the court finds no valid reason for not impleading a party, the court may order
the inclusion of the necessary party under Section 9. And take note that under the new rules, the
failure to comply with the order of inclusion without justifiable cause shall be deemed a waiver
of the claim against such (necessary) party.
EXAMPLE: If Tato, without justifiable cause, refuses to include Sheriff despite the order of
the court, and later on, Andre cannot also pay Tato, there is no way now for Tato to go against
Sheriff anymore because he (Tato) failed to comply with the order of inclusion without justifiable
cause.
Sec. 10. Unwilling co-plaintiff. If the consent of any party who
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)
you.
This is particularly true with INDISPENSABLE parties the case cannot proceed without
EXAMPLE : There are 4 brothers and 1 sister. They have to file a case against somebody to
recover property which they believe was owned by their parents. Then, brother 4 say to sister 1,
Let us file a case. But sabi ni sister 1, Pilitin mo muna ako. Then she says, Ayoko nga, hindi
mo ako pinilit eh! Meaning, all of them will suffer because ayaw ni sister 1 mag-file ng kaso.
Q: Now, what is the remedy of the 4 brothers?
A: Under Section 10, include the one who refused as one of the defendants. If there is
unwilling plaintiff, name him as defendant whether he likes it or not.
MISJOINDER AND NON-JOINDER OF PARTIES
Sec. 11. Misjoinder and non-joinder of parties. Neither misjoinder nor
non-joinder of parties is ground for dismissal of an action. Parties may
be dropped or added by order of the court on motion of any party or
on its own initiative at any stage of the action and on such terms as are
just. Any claim against a misjoined party may be severed and
proceeded with separately. (11a)
This is similar to Section 6 of Rule 2 misjoinder of causes of action is not a ground for
dismissal of an action. Misjoinder or non-joinder at parties is not a ground for a motion to
dismiss because at any stage of the case, the court can order a misjoined party to be removed or
a party not joined to be included.
Q: Do you know what MISJOINDER of parties mean?
A: It means that two or more parties should not be joined but they are improperly joined. A
good example is, if there is no common question of fact or law. Meaning, you do not have any
dennisaranabriljdii
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business to be here but you are joined or misjoined. That is what we call misjoinder of parties. It
is also known as spurious class suit.
Well, NON-JOINDER is different. A party who should be joined was not joined such as a
necessary party.
Q: What happens if a party is misjoined or if there is a non-joinder, should the case be
dismissed?
A: Not, that is not a ground for dismissal.
Q: So what is the remedy then?
A: The remedy is to order the removal of the party who is misjoined, or to order the
inclusion of the party who should be joined.
And that is not a defect which should cause
the dismissal of the case because the can always issue an order ordering the removal of a
misjoined party or the inclusion of joinder of a party who should be included.
Q: Does it mean to say therefore, that the plaintiff has the license to include anybody in an
action? Like for example, I have a case against somebody in the class, the trouble is in the
meantime, I cannot identify who among you who did the wrong to me. So I will file a case against
all of you. Anyway later on, I can dump you kung hindi ka talaga sabit. Now, is this allowed?
A: NO. That is not a license. What the law contemplates, according to the SC, the party was
joined in good faith believing that he was a defendant but actually it turned out to be wrong. So,
you have no right to sue anybody just like that. That is not an excuse for suing any party left and
right. In the case of
REPUBLIC vs. SANDIGANBAYAN
173 SCRA 72 [1989]
HELD: Section 11 of Rule 3 does not comprehend whimsical and irrational
dropping or adding of parties in a complaint. What it really contemplates is
erroneous or mistaken non-joinder and misjoinder of parties. No one is free to
join anybody in a complaint in court only to drop him unceremoniously later at
the pleasure of the plaintiff. The rule presupposes that the original inclusion had
been made in the honest conviction that it was proper and the subsequent
dropping is requested because it turned out that such inclusion was a mistake.
CLASS SUIT
SEC. 12. Class suit. When the subject matter 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 number of them which the
court finds to be sufficiently numerous and representative as to fully
protect the interests of all concerned may sue or defend for the benefit
of all. Any party in interest shall have the right to intervene to protect
his individual interest. (12a)
As a GENERAL RULE, if there are several real parties in interest, they shall be included in
the case whether indispensable or necessary. Example: There are 30 of us. The general rule is
that all parties in interest, indispensable or necessary shall be included.
EXCEPTION to the General Rule: Class Suit. Meaning, some of you will sue to represent the
rest. That is also known as the doctrine of virtual representation. The concept of a class suit
was first enunciated in the old case of
BORLAZA vs. POLISTICO
47 Phil. 345
FACTS: This case has something to do with raffle. A group of people decided
to form an association which they called Turnuhang Polistico. You become a
member of this association by contributing a certain sum of money. And then
every Sunday after mass, half of the collection will go to the treasurer of the
association. The other half will be raffled off. This has been going on for months
and years. The time came when the funds of the association became very big.
Some of the members, in behalf of all the members, decided to file a case against
the officers to render an accounting of all the amounts. The real parties in
interest would be the members.
ISSUE: Is the suit filed by some members in behalf of some members
proper?
HELD: YES, because if We will require all the members to appear, it will be
quite impossible. Therefore, some members must be made to sue but only in
behalf of all the members who are not around and it is impracticable to bring
them all to the court. A number of them may sue for the benefit of all.
Q: What are the CONDITIONS FOR A VALID CLASS SUIT ?
A: Under Section 12, the following are the conditions of a valid class suit:
1.
2.
The subject matter of the controversy is one of common or general interest to

many persons (such as the funds of the association in the case of
POLISTICO); and
The parties are so numerous that it is impracticable to bring them all before the
court.
In which case a number of them which the court finds to be sufficient and numerous and
representative as to fully protect the interests of all concerned may sue or defend for the benefit
of all. Example is a taxpayers suit filed in behalf of all the taxpayers in the Philippines. And
there is no specific number of persons that is provided by law.
Now, we will go to some interesting cases on class suit decided by the Supreme Court:
SULO NG BAYAN vs. ARANETA, INC.
72 SCRA 347 [1976]
dennisaranabriljdii
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FACTS: This concerns the big property of the Aranetas in Quezon City. It
has been the subject matter of litigation for the past years 3 or 4 decades. It is a
big track of land in Quezon City occupied by so many people who want to acquire
it. They are questioning the title of the Aranetas
So, Sulo (torch) ng Bayan is the association of squatters. Since the
properties of the Araneta is very big, they subdivided it kanya-kanyang lote.
Then a case was filed by Sulo ng bayan Association against Araneta to annul the
title of the latter.
ISSUE #1: Whether or not the action was file in the name of the real in
interest.
HELD: Sulo ng Bayan is not the real party in interest. It violates Section 2
the action must be prosecuted and defended in the name of the real parties in
interest. The members occupying the land are the plaintiffs. The association is
not the one occupying the lot. So, the first question is, who should be the
plaintiff? It should be the members.
ISSUE #2: Whether or not the action was properly pleaded as a class suit
HELD: NO. This is the more important reason why they cannot qualify as a
class suit: In a class suit, the subject matter is of common interest to all. Meaning,
lahat tayo is interesado. To illustrate:
You are Occupant No. 1, which lot do you occupy? Here (a particular lot).
Meron ka bang interest diyan? Meron. Do you have an interest in
that
(another lot) portion? Wala. If that is so, then the subject matte is not of
common interest. The interest of one occupant is only on the lot he occupies.
Meaning, My neighbor does not have an interest on the lot I occupied.
What should be done is that all of them to sue together to cover the entire property, for
each one has a lot. So, in that case, Section 6 should be applied permissive joinder of parties
because there is a common question of fact. This is more of permissive joinder of Parties rather
than a class suit. Thats why you can confuse Section 6 with Section 12. But the permissive
joinder of parties kailangan, lahat kayoi nandiyan. Hindi puwede na I will represent you. Kanyakanya yan but they can join together. Unlike in a class suit, the subject matter is of interest to
everybody and we cannot all be joined because we are so numerous.
BULIG-BULIG KITA KAMAGANAK ASSOCIATION, ET AL vs. SULPICIO

LINES
May 19, 1989
RE: Doa Paz Tragedy iyong lumubog na barko owned by Sulpicio Lines.
FACTS: There we so many relatives who filed a case against Sulpicio Lines
and there was an attempt to file a class suit in behalf of everyone who were
drowned including those who were not identified.
HELD: That cannot be. The survivors have no interest in the death of other
passengers. The interest in this case is individual. What would have been proper
is permissive joinder of parties because of common question of tact or law, but

not class suit.
OPOSA vs. FACTORAN
224 SCRA 12 [1993]
FACTS: Oposa et al were all minors. Some were small boys duly
represented by their parents. They filed a case against then DENR Secretary
Factoran. The prayer in the case is to order the DENR to cancel all existing
Timber License Agreements (TLAs), to cease and desist from proceeding,
accepting, processing, renewing all accruing new TLAs. So, in effect, it prays for a
total log ban in the country to preserve the remaining forest all over the
Philippines.
These young boys sue with their parents. They are suing in their behalf, in
behalf of the other citizens who are of their age because they stand to suffer if the
environment will be deteriorated. They say that they are entitled to the full
benefit, use and enjoyment of the natural resources of our countrys rich tropical
rainforests. They say, the case was tiled for themselves and others for the
preservation of our rainforest and we are so numerous that it is impracticable to
bring all plaintiffs to court. They say that they represent their generations and
generations yet unborn.
HELD: The civil case is indeed a class suit. The case however has a special
and novel element. The personality of the minors to sue for the succeeding
generations is based on the concept of inter-generational responsibility insofar
as a balanced and healthful ecology is concerned. Every generation has a
responsibility to preserve the ecology. The minors right to a sound environment
constitute at the same time the performance of the obligation to ensure the
protection of the rights or the generations to come.
Q: In case of doubt, should a class suit be allowed?
A: NO. When the issue is not so clear, a class suit should not be allowed b e cause class suit
is an exception to the general rule that all parties should be included.
CADALIN vs. POEA ADMINISTRATOR
238 SCRA 721 [1995]
HELD: While it is true that class suit is allowed, it should be allowed with
caution because the fact that you represent others is only a fiction of law. For all
you know, those others may not want to be represented. So okey lang kung
manalo ang kaso. Eh kung matalo ang kaso? All others start blaming you. That is
why the court is extra-cautious in allowing class suits because they are the
exceptions to the condition sine qua non requiring joinder of all indispensable
parties.
In an improperly instituted class suit, there would be no problem it the
decision secured is favorable to the plaintiffs. The problem arises where the
decision is adverse to them. In which case, the parties who are impleaded
dennisaranabriljdii
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through their self-appointed representatives would surely plead denial of due

process.
Q: Distinguish a representative suit from a class suit.
A: In the case of
LIANAS SUPERMARKET vs. NLRC
257 SCRA 186 [May 31, 1996]
FACTS: A labor union filed a case against the employer in behalf of
hundreds of employees. Is this a representative suit or a class suit?
HELD: What makes the situation a proper case for a class suit is the
circumstance that there is only one right or cause of action pertaining or
belonging in common to many persons, not separately or severally to distinct
individuals. The object of the suit is to obtain relief for or against numerous
persons as a group or as an integral entity, and not as separate, distinct
individuals whose rights or liabilities are separate from and independent of
those affecting the others.
In a representative suit, there are different causes of action pertaining
different persons.
In the present case, there are multiple rights or causes of action pertaining
separately to several, distinct employees who are members of respondent Union.
Therefore, the applicable rule is that provided in Rule 3 on Representative
Parties. Nonetheless, as provided for in the Labor Code, a legitimate labor
organization has the right to sue and be sued in its registered name. This
authorizes a union to file a representative suit for the benefit of its members in
the interest of avoiding an otherwise cumbersome procedure of joining all union
members in the complaint, even if they number by the hundreds. For
convenience, the Labor Code allows a union to file a representative suit.
It is important to note the following:

1. CLASS SUIT
2. REPRESENTATIVE SUIT
3. DERIVATIVE SUIT only peculiar to the corporation law where the minority files
a suit in behalf of the entire corporation because intra-corporate remedy is
useless.
ALTERNATIVE DEFENDANTS
Sec. 13. Alternative defendants. Where the plaintiff is uncertain
against who of several persons he is entitled to relief, he may join any
or all of them as defendants in the alternative, although a right to
relief against one may be inconsistent with a right of relief against the
other. (13a)
Alternative defendants is also related to alternative causes of action even if your right
against one is inconsistent with your right to relief against the other party, you may file a suit
against the alternative defendant. (c.f. Rule 2, Section 5 Joinder of Causes of Action)
You filed a case against the operators of two vehicles. In effect, your cause of action is either
culpa aquiliana or culpa contractual. Is that not inconsistent? The law says, although a right to
relief against one may be inconsistent with a right against the other. In other words, even if the
two causes of action is inconsistent with each other, it is allowed.
As a matter of fact, this is the best policy because the plaintiff is a sure winner. The only
question is, who among the two will be held liable.
Although the law is silent, if there is such a thing as alternative defendants, there is no
reason why the grounds for alternative plaintiffs should not be allowed.
Q: (Taken from Remedial Law Reviewer by Nuevas) May plaintiff join in the alternative?
A: YES, plaintiffs may join in the alternative under the same principle as alternative joinder
of defendants. When several persons are uncertain as to who among them is entitled to relief
from a certain defendant, they may join as plaintiffs in the alternative. This is also sanctioned by
the rule on permissive joinder of parties (Pajota vs. Jante, L-6014, Feb. 8, 1955). Thus, the
principal and his agent may join as plaintiffs in the alternative against a defendant. If the agency
is proved, the relief is awarded to the principal. If not, award is then made to the agent.
Sec. 14. Unknown identity or name of defendant. Whenever
identity or name of a defendant is unknown, he may be sued as
unknown owner, heir, devisee, or by such other designation as
case may require; when his identity or true name is discovered,
pleading must be amended accord. (14)
the
the
the
the
Q: Can you sue somebody who is unknown?

A: YES, under Section 14.
BAR PROBLEM: While Leyva The Rapper was walking on the street. He was bumped by a
car, say a Toyota Altis, 2001 model, color blue. Now, so far, he could not determine who is the
owner. If you are the lawyer of the Leyva, how would you sue the defendant?
A: Under Section, I will sue the owner of that car as an unknown defendant. I can place in
my complaint, Leyva the rapper, plaintiff, vs. the registered owner of Honda motor vehicle with
plate number so and so. And later if you discover the true identity of the owner, we can amend
the complaint to place the name of the defendant.
Section 14 is similar with Rule 110 in Criminal Procedure a case may be filed against an
unknown accused.
dennisaranabriljdii
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RULE 110, SEC. 7. Name of the accused. The complaint or

information must state the name and surname of the accused or any
appellation or nickname by which he has been or is known. If his
name cannot be ascertained, he must be described under a fictitious
name with a statement that his true name is unknown.
If the true name of the accused is thereafter disclosed by him or
appears in some other manner to the court, such true name shall be
inserted in the complaint or information and record. (7a)
ENTITY WITHOUT JURIDICAL PERSONALITY AS DEFENDANT
Sec. 15. Entity without juridical personality as defendant. When two or
more persons not organized as an entity with juridical personality
enter into a transaction, they may be sued under the name by which
they are generally or commonly known.
In the answer of such defendant, the names and addresses of the
persons composing said entity must all be revealed.
Rule 1, Section 1 provides that only natural of juridical persons may be sued.
Entity without juridical personality as defendant. Under the old law, this was known as
suing two or more persons involved in a business under a common name. When two or more
persons transact in a business under a common name, they may be sued under their common
name.
Q: Who are really the defendants here? A: The persons involved.
Now, it is worded in this manner: When two or more persons not organized as an entity
with juridical personality, instead of a common name. You cannot sue the entity because it has
no juridical personality. But you do not also know the members of that entity, so the law allows
you to file a case against the entity.
Under the second paragraph of Section 15, when the defendants file an answer, they must
file under their names as they are really the real parties in interest. When the lawyer answers the
complaint, he is duty-bound to provide the names of all the defendants.
Q: How do you summon this kind of defendant?
A: Rule 14, Section 8:
RULE 14, Sec. 8. Service upon entity without juridical personality.
When persons associated in an entity without juridical personality are
sued under the name by which they are generally or commonly
known, service may be effected upon all the defendants by serving
upon any one of them, or upon the person in charge of the office or
place of business maintained in such name. But such service shall not
bind individually any person whose connection with the entity has,
upon due notice, been severed before the action was brought. (9a)
Correlate this with Rule 36, Section 6:

Sec. 6. Judgment against entity without juridical personality.
When judgment is rendered against two or more persons sued as an
entity without juridical personality, the judgment shall set out their
individual or proper names, if known. (6a)
GENERAL RULE: actions must be filed against real parties in interest.
EXCEPTIONS: (When may an action be filed without naming all the parties in involved?)
1.
2.
3.
Class suit (Section 12, Rule 3);

Entity without juridical personality (Section 15, Rule 3);
Any co-owners may bring an action for ejectment (Article 487, New Civil Code)
EFFECT OF DEATH OF A PARTY
Sec. 16. Death of party; duty of counsel. Whenever a party to a

pending action dies, and the claim is not thereby extinguished, it shall
be the duty of his counsel to inform the court within thirty (30) days
after such death of the fact thereof, and to give the name and address
of his legal representative or representatives. Failure of counsel to
comply with this duty shall be a ground for disciplinary action.
The heirs of the deceased may be allowed to be substituted for
the deceased, without requiring the appointment of an executor or
administrator and the court may appoint a guardian ad litem for the
minor heirs.
The court shall forthwith order said legal representative or
representatives to appear and be substituted within a period of thirty
(30) days from notice.
If no legal representative is named by the counsel for the
deceased party, or if the one so named shall fail to appear within the
specified period, the court may order the opposing party, within a
specified time, to procure the appointment of an executor or
administrator for the estate of the deceased and the latter shall
immediately appear for and on behalf of the deceased. The court
charges in procuring such appointment, if defrayed by the opposing
party, may be recovered as costs. (16, 17a)
First of all, there are cases when a party to a pending action dies and the claim is not
thereby extinguished (this is what they called an action which survives as we will explain later)
and there are certain actions where if a party dies, the claim is automatically extinguished.
Meaning, the death of a party causes death of the action. But these are very few. Majority of
cases when the party dies, the case or the cause of action continues.
dennisaranabriljdii
23
It is the duty of the lawyer of the deceased to inform the court within 30 days after the
death of the party thereof. He must inform the court and give the name and address of his legal
representative/s (e.g. administrator of executor of the estate)
Well of course, under the rule in legal ethics, the lawyer-client relationship is automatically
terminated by the death of the client because the lawyer-client relationship is personal. But
procedurally, you must tell the court and you must give the name of the legal representative. The
latter may re-hire the lawyer but under a new contract.
The purpose there is for substitution so that the legal representative will be ordered
substituted. And there is a new provision under the new rules. That is, failure of the counsel to
comply with his duty shall be a ground for disciplinary action. That is not found in the prior rule.
So, the lawyer can be subjected to disciplinary action.
So the provision continues, the heirs of the deceased may be allowed to be substituted for
the deceased without requiring the appointment of an executor or administrator. And the court
may appoint a guardian ad litem for the minor heirs.
So, other than the legal representative, before anything else, the representative refers to the
executor or administrator, and the other alternative will be the heirs, such as the surviving
children, wife or spouse.
Although there was a case decided by the SC way back in 1986 in the case of
LAWAS vs. COURT OF APPEALS
146 SCRA 173
HELD: The priority of substitution would be the executor or administrator
not the heirs. The heirs would only be allowed to be substituted if there is an (1)
unreasonable delay in the appointment of administrator or executor, or (2) when
the heirs resort to extrajudicial partition. But outside of those two reason, the
law always gives priority to the administrator or executor.
Under the rule, priority is given co the legal representative of the deceased. That is, the
executor or the administrator of his estate. Many courts do not enforce it strictly. Normally,
patay na, O! Ito ang heirs o! OK! Substitute! Actually, that is wrong based on LAWAS case. The
priority is given to the administrator or executor. It is only when there is unreasonable delay in
the appointment, or when the heirs resort to extrajudicial partition because there is no more
administrator or executor in extrajudicial settlement.
VDA. DE SALAZAR vs. COURT OF APPEALS
250 SCRA 303 [November 23, 1995]
FACTS: This is an ejectment. case. The defendant died while the case is
going on. What is the procedure? There should be substitution. But there was no
substitution in the case for ten years, until it was decided. The court was not
informed of the death of the defendant. Until finally, there was a decision.
ISSUE: When there is failure to effectuate the substitution of heirs before

the rendition of judgment, is the judgment jurisdictionally detective? Because
here, the case continued eh, in which somebody is already dead.
HELD: NO, the judgment is valid where the heirs themselves appeared
before the trial court and participated in the proceedings. Therein, they
presented evidence in defense of the deceased defendant. It is undeniably
evident that the heirs themselves sought their day in court and exercised their
right to due process.
In other words, when there was a defect the heirs however cannot used that because they
themselves appeared and continued the case. So, in effect, there was estoppel.
EFFECT OF DEATH OF A PARTY ON MONEY CLAIMS
Now, one of the radical changes again introduced by the new rules is the effect of the death
of the defendant in a money claim action to collect a sum of money.
24
Q: And what is that procedure?

A: YOU FILE A CLAIM against the estate under Section 5, Rule 86 of the Rules of Court, but
there will be no execution.
[Note: SEE OUTLINE AT THE LAST PART OF THIS RULE.]
Q: We are talking of death of a party in a pending civil action. While there is a case and a
party dies, what will happen to the case?
A: I will distinguish Anong klaseng kaso iyar. Is that an ACTION WHICH DOES NOT
SURVIVE or an ACTION WHICH SURVIVES?
1.) ACTION WHICH DOES NOT SURVIVE
An action which does not survive is an action which is abated upon the death of a party. The
case cannot go on once a party dies. And normally, that refers to actions which are purely
personal in character like an action for annulment of marriages, an action for declaration of
the nullity of marriage or, an action for legal separation, or an action for support. These are
the cases arising from the Family Code.
Sec. 20. Action on contractual money claims. When the action is for
recovery of money arising from contract, express or implied, and the
defendant dies before entry of final judgment in the court in which the
action was pending at the time of such death, it shall not be dismissed
but shall instead be allowed to continue until entry of final judgment.
A favorable judgment obtained by the plaintiff therein shall be
enforced in the manner especially provided in these Rules for
prosecuting claims against the estate of a deceased person. (21a)
Example: The husband files a case against the wife for annulment of
marriage or legal separation. One of them dies. Wala nang substitution,
TAPOS NA! When one of the parties dies, the marriage is dissolved. There is
nothing to annul because the marriage is already dissolved. So, these are
the actions which are purely personal .
Q: So, what is the effect of the death of the party in actions which does
not survived?
A: The case is dismissed!
The best example here is an action to collect an unpaid loan. And while the case is pending
the defendant died. What will happen to the case? The law says: If the defendant dies before the
entry of the final judgment in the court at the time of death, it shall not be dismissed but it shall
instead be allowed to continue until entry of final judgment.
Under the OLD RULES, the case shall be dismissed. So, the civil case is not suspended but it
will be dismissed. Eh, paano 'yung utang? Now, you file a case against the estate of the deceased
under the Rules on Special Proceedings. But definitely the civil case hindi na matuloy . . . patay na
iyon when the defendant dies.
dennisaranabriljdii
However, these cases are very few. Majority of the cases are damage suit,
recovery of possession, recovery of land, recovery of unpaid loans, etc. So, these are
what you call actions which survive. Meaning , if a party dies, you cannot say that the
case is terminated upon the death of the party. So, ano ang mga kaso na iyan?
2.)
ACTIONS WHICH SURVIVE Is it a contractual money claim or non-contractual claim?

If it is a contractual claim, who died is it the plaintiff or is it the defendant? If the
defendant is the one who died, when did he die?
Now, under the NEW RULE, the case will not be dismissed but rather, the case will now
continue until entry of final judgment. That is a radical change of procedure! So case will not be
dismissed. It shall be allowed to continue until entry of final judgement. Meaning, until it
becomes final and executory.
2a.) Actions which survive; CONTRACTUAL MONEY CLAIMS:
Q: But of course, if the judgment is favorable to you (the plaintiff), can you move to execute?
Can you move to execute the decision against or buy the property of the defendant?
A: NO, because the law provides, xxx a favorable judgment obtained by the plaintiff therein
shall be enforced in the manner specially provided in these Rules for prosecuting claims against
the estate of a deceased person.
2a2.) If it is the defendant who dies, the question is: KAILAN NAMATAY? Before
entry of final judgment or after entry? This is where Section 20 will come in.
2a1.) If it is the plaintiff who dies, the case will continue. The heirs or legal
representatives will proceed. So, there is substitution.
2a2a.) If the defendant died before entry of final judgment, you apply
Section 20 of Rule 3. Meaning, the case shall not be dismissed but shall be
allowed to continue until entry of final judgment. And the favorable judgment
obtained by the plaintiff therein shall be enforced in the manner especially
provided in these Rules for prosecuting claims against the estate of a deceased
person, and that is Section 5 of Rule 86.
2a2b.) If the defendant died after the entry of the final judgment but before
execution (after the judgment became final but before there could be levy or
execution) you cannot move to execute. Again, you apply Section 5 of Rule 86
which is the governing rule you file your judgment as a claim against the estate
of the deceased defendant. [Section 5, Rule 86 - Please refer to your codals.] The
purpose there is, so that the creditor will share with the other creditors pro-rata
in the distribution of the estate.
2a2c) If the defendant died after levy or execution but before the auction
sale meaning, the property was already levied by the sheriff bago pa namatay
we will now apply Section 7[c] of Rule 39:
Rule 39, Sec. 7. Execution in case of death of party. In case of the
death of party, execution may issue or be enforced in the
following manner:
xxxxxx
(c) In case of the death of the judgment obligor, after
execution is actually levied upon any of his property, the same
may be sold for the satisfaction of the judgment obligation, and
the officer making the sale shall account to the corresponding
executor or administrator for any surplus in his hands. (7a)
Meaning, after the levy, namatay, auction sale proceeds as scheduled. And if
there is an excess, the excess shall be delivered to the administrator of executor.
dennisaranabriljdii
25
to continue until entry of final judgment. BUT CONTINUE AGAINST WHOM? Against the
deceased? Now, to my mind, you correlate this with Section 16 --- there should still be
substitution.
But assuming, there was no substitution and the heirs fought in the case; there is waiver
because the defect is procedural. Just like what happened in the case of VDA. DE SALAZAR.
Actually, what Section 20 emphasized is that, the action shall not be dismissed but shall continue
to emphasize that it is now different compared with the prior RULE. But obviously, there will
always be a substitution
Sec. 17. Death or separation of a party who is a public officer. When a
public officer is a party in an action in his official capacity and during
its pendency dies, resigns, or otherwise ceases to hold office, the
action may be continued and maintained by or against his successor if,
within thirty (30) days after the successor takes office or such time as
may be granted by the court, it is satisfactorily shown to the court by
any party that there is a substantial need for continuing or
maintaining it and that the successor adopts or continues or threatens
to adopt or continue the action of his predecessor. Before a
substitution is made, the party or officer to be affected, unless
expressly assenting thereto, shall be given reasonable notice of the
application therefor and accorded an opportunity to be heard. (18a)
This applies only when the public officer is party to an action in his official capacity. If he
(1) dies; (2) resigns; or (3) cease to hold office, there will be a succession.
Q: What will happen to the case?
A: The following:
2b.) Actions which survive; NON-CONTRACTUAL MONEY CLAIMS:

EXAMPLE: an action for recovery of property, real or personal
like replevin, forcible entry, unlawful detainer, action publiciana,
action reinvidicatoria, or action for damages, (damages that is not the
same for transaction of money because damages arising from culpa
aquiliana is one not arising from contract.)
1.)
If the successor intends to continue with the policy.

EXAMPLE: Mayor Pascua threatened to demolished the building of Mr.
Nuere as a hazard. If Mayor Pascua dies, Vice-Mayor Angeles becomes the
mayor. If Vice-Mayor Angeles who is now the mayor says that he will
continue with the demolition, he will be substituted and he is given 30 days
to comment.
If a party dies in an action which survives which is a non-contractual

money claim, obviously, there is substitution of parties. So, what are these
non-contractual money claims which survive? These are those mentioned
in Section 7 of Rule 86 and Section 1 of Rule 87. That is in the study of
Special Proceedings on settlement of the estate of a deceased person.
2.)
If the successor does not adopt the policy, the case will be dismissed.
So, that is the outline in the light of the amendments of the Rules of Court. [PLEASE REFER
TO THE OUTLINE HEREIN ATTACHED.]
Note: What Section 20 says is that: before the case can be decided and the defendant dies
(in actions involving money claims) the case shall not be dismissed but shall instead be allowed
Sec. 18. Incompetency or incapacity. If a party becomes incompetent

or incapacitated, the court, upon motion with notice, may allow the
action to be continued by or against the incompetent or incapacitated
person assisted by his legal guardian or guardian ad litem. (19a)
EXAMPLE: Francis files a case against Kenneth. While the case is pending, Kenneth becomes
insane. (tsk! tsk!) The case will continue but Kenneth has to be assisted by his guardian ad litem
Thad.
This is related to Rule 3, Section 3 on representative party but in Section 3, Kenneth was
already insane before the case is filed. [inborn na yan eh!]
Sec. 19. Transfer of interest. In case of any transfer of interest, the
action may be continued by or against the original party, unless the
court upon motion directs the person to whom the interest is
transferred to be substituted in the action or joined with the original
party. (20)
EXAMPLE: Rudolpho files a case against Leweh to recover a piece of land. While the case is
pending, Leweh sold the land to Erec. Erec now assumes the risk and takes the property subject
to the outcome of the case.
Q: Can the case continue against Leweh?
A: YES.
1.) If Leweh loses and cannot pay, Erec is subsidiary liable;
2.) Leweh can be removed and Erec will be substituted; or
3.) Leweh can stay and Erec will be added.
In all 3 cases, Erec will be bound by the judgment.
Sec. 21. Indigent party. A party may be authorized to litigate his
action, claim or defense as an indigent if the court, upon an ex parte
application and hearing, is satisfied that the party is one who has no
money or property sufficient and available for food, shelter and basic
necessities for himself and his family.
Such authority shall include an exemption from payment 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 was exempted from
paying 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
determine after hearing that the party declared as an indigent is in
fact a person with sufficient income or property, the proper docket
and other lawful fees shall be assessed and collected by the clerk of
court. If payment is not made within the time fixed by the court,
execution shall issue for the payment thereof, without prejudice to
such other sanctions as the court may impose. (22a)
In criminal cases, the court assigns a counsel de officio. Under the Constitution on Bill of
Rights, no person shall be denied access to courts by reason of poverty.
In civil cases, a plaintiff need not pay docket fee if he is an indigent if he files an application
(ex-party application) to allow him to litigate as an indigent litigant. But if the indigent wins, he
has to pay the fees file now, pay later) the amount shall be a lien on any favorable judgment.
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The third paragraph is new. The other party may contest the claim of the indigent if he is
really an indigent or not.
Sec. 22. Notice to the Solicitor General. In any action involving the
validity of any treaty, law, ordinance, executive order, presidential
decree, rules or regulations, the court, in its discretion, may require
the appearance of the Solicitor General who may be heard in person or
through a representative duly designated by him. (23a)
EXAMPLE: Inday (the love-is-blind club president) files a case against Kenneth Bruce Lim
for declaration of nullity on the ground of psychological incapacity. Kenneth alleges that Article
38 of the Family Code is unconstitutional. So the court will rule on the validity of the law in which
case, the Solicitor General has to be involved in the case to defend the validity of the law.
REASON: The Solicitor General is the legal counsel of the Republic of the Philippines whose
duty is to defend all the official acts of the Government.
Rule 4
VENUE OF ACTIONS
Q: Define venue.
A: VENUE is the place where the action must be instituted and tried. (Ballentines Law Dict.,
2nd Ed., p. 1132)
EXAMPLE: The venue of the action is in Davao, or the venue of the action is in Manila. If you
file the action in other places, that is improper or wrong venue. In criminal cases, that is called
territorial jurisdiction the place where the crime was committed. But in civil cases, venue is
not the same with jurisdiction. We do not call it territorial jurisdiction. We call it venue.
This is where it is important to determine whether the action is real or personal for the
purpose of venue. The venue of real action is stated in Section 1 and the venue for personal
action is stated in section 2.
VENUE OF REAL ACTIONS
Section 1. Venue of real actions. Actions 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.
Forcible entry and detainer actions shall be commenced and
tried in the municipal trial court of the municipality or city wherein
the real property involved, or a portion thereof, is situated. (1[a],
2[a]a)
While it is true that the rule on venue is new however, the rule on venue even before 1997
as earlier as August 1, 1995, Rule 4 of the 1964 Rules has already been amended by the
administrative Circular No. 13-95, but now it incorporated under the Rules of 1997.
Now, when the action is real, we distinguish whether it is forcible entry and unlawful
detainer or action publiciana or action reinvidicatoria. If it is accion publiciana or reinvidicatoria,
the proper venue is the one which has jurisdiction over the area wherein the real property
involved or a portion thereof is situated. Of course, the RTC is divided into areas. every branch
has its own designated area of responsibility.
Q: Why does the law say tried in the proper court?
A: It is because proper court will now be the MTC or the RTC, depending on the assessed
value of the property. If the assessed value is P20,000 or less, MTC yan. If it is over P20,000, it
should be in the RTC.
Now in the case of forcible entry and unlawful detainer, paragraph 2 will apply that is,
MTC it is in the municipality or city wherein the real property involved or a portion thereof is
situated. So, kung saan iyong real property, doon din ang venue. Now, it is possible that for a
property be in the boundary of two towns. Example: one half is part of Davao City and the other
half is in the municipality of Panabo. So, if you would like to file a case for forcible entry against
somebody, you have two choices. You can file it in the MTC of Panabo or in the MTC of Davao
City.
Now, lets go to personal actions.
VENUE OF REAL ACTIONS
Sec. 2. Venue of personal actions. All other 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 non-resident defendant where
he may be found, at the election of the plaintiff. (2[b]a)
Iyan ang tinatawag natin na TRANSITORY ACTION . The venue will now depend on the
residence of the parties. In the civil action, the venue is (1) the place where the plaintiff resides
or (2) where the defendant resides, at the election of the plaintiff. So, puwede kang pumili sa
dalawa.
Now, suppose, there are four (4) plaintiffs and 4 defendants and the 4 plaintiffs reside in 4
different cities or municipalities. So ang choice mo ng venue ay walo (8) becuae the law says,
where the plaintiff or any of the principal plaintiffs or where the defendant or any of the
principal defendants reside
So, kung maraming defendants at iba-iba ang lugar at maraming plaintiffs, the residence
of each one could be the proper venue.
NOTE: PRINCIPAL PLAINTIFF, PRINCIPAL DEFENDANT. Because there is such a thing as
nominal defendant and nominal plaintiff iyun bang formal lang.
EXAMPLE of a nominal party: When a party wants to file a case to annul an execution sale of
to annul a levy, normally it pleads the sheriff as party. But the sheriff is not the principal party
dennisaranabriljdii
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but is only a NOMINAL PARTY. So, the residence of the sheriff is not considered the sheriff being
a nominal party only.
So, just imagine if there are 4 plaintiffs and 4 defendants, iba-ibang cities. There 8 choices of
venue. That is the original concept of forum shopping. I will cite the original case which traced
the history of forum-shopping na kung saan ako convenient, doon sko mag-file. That is the
original concept which is legal and legitimate. The trouble is, the concept of forum shopping
degenerated into a malpractice , where a lawyer, mag-file ng case, sabay-sabay. Ayan! That is
why there is a SC case which I will later discuss where Justice Panganiban cited the history of
forum shopping. (Dean is referring to the case of FIRST PHILIPPINE INTERNATIONAL BANK vs.
CA (252 SCRA 259), January 24, 1996)
Forum shopping is legitimate and valid but the trouble is, the practice acquired another
unsavory meaning, where a lawyer will file simultaneous cases. Kaya nga nasira from a
legitimate practice to an act of malpractice. That is the history of forum shopping.
However, there are instances when it is easy to distinguish whether the action is real or
personal and there are also instances when it is difficult.
EXAMPLE: An action for annulment of a contract of sale or rescission of contract of sale of
real property. Generally, an action for annulment or rescission is a personal action. But suppose ,
I will file a complaint to annul or rescind a contract of a deed of sale over a parcel of land. Im
from Davao and youre from Davao. But I would like to annul the sale of a land which I made to
you one year ago which land is situated in Digos and the purpose of my action is to recover the
ownership of that land. Then, that is a real action because the primary object of the suit is to
recover the ownership of real property, di ba? It seems to be personal but in reality it is a real
action. So the venue is governed by Section 2.
But there are also actions na King tingnan mo parang real but in reality, they are personal
actions. Like what happened in the case of
LA TONDEA DISTILLERS INC vs. PONFERRADA
264 SCRA 540 [1996]
FACTS: Judee entered into a contract where she committed herself to sell
her land to Maying. And Judee even placed a lis pendens on the property. But
later Judee said, Gua bo ai! (chinese for ayoko na!) Nag-back out ba! So Maying
will file a case against Judee for specific performance to compel her to sign the
deed of sale.
Ang question diyan, ano ba ito? real or personal action? Because if it is real
action, the complaint should be filed in the place where the land is situated. If the
action is personal, it can be filed in Davao City where both of them are residents.
ISSUE: Is this real or personal action?
HELD: It is a PERSONAL ACTION because you are not questioning my
ownership. Here, the plaintiff recognizes that the defendant is still the owner.
Kaya nga he is still filing the case to compel him to sell.
Thus, it should be filed in the residence of the parties. The complaint is one
for specific performance with damages. Private respondents do not claim
ownership of the lot but in fact recognized title of defendants by annotating a
notice of lis pendens. In one case, a similar complaint for specific performance
with damages involving real property, was held to be a personal action, which
may be filed in the proper court where the party resides. Not being an action
involving title to or ownership of real property, venue, in this case, was not
improperly laid before the RTC of Bacolod City. (Adamos vs. Tuazon 25 SCRA 30
[1968])
So it is not really an action affecting title or ownership because you are still recognizing the
title of the owner of the property. It is different when Im no longer recognizing it, like recovery
or reinvidicatoria. These are gray areas, or sometimes very hard to distinguish whether the
action is real or personal.
Q: [Taken from Remedial Law Reviewer by Nuevas] Where several or alternative reliefs are
sought in an action, and the reliefs prayed for are real and personal, how is venue determined?
A: Where several or alternative reliefs are prayed for in the complaint, the nature of the
action a s real or personal is determined by the primary object of the suit or by the nature of the
principal claim. Thus, where the purpose is to nullify the title to real property, the venue of the
action is in the province where the property lies, notwithstanding the alternative relief sought,
recovery of damages, which is predicated upon a declaration of nullity of the title. (Navarro vs.
Lucero, 100 Phil. 146)
Where a lessee seeks to establish his right to the hacienda, which was subsequently sold,
for the purpose of gathering the crops thereon, it is unnecessary to decide whether the crops are
real or personal property, because the principal claim is recovery of possession of land so that he
may gather the fruits thereof. (LTC vs. Macadaeg, 57 O.G. 3317)
Now, going back to Section 2.
RESIDENCE OF THE PARTIES
We will now go the issue of residence. Where is the residence of the parties? Because
residence in law could mean DOMICILE OR LEGAL RESIDENCE, it could be ACTUAL OR
PHYSICAL RESIDENCE.
Alam mo, iyong legal domicile, you may not be there but there is intention to go back there
someday. Alright, with the exception of only one case, the word residence and venue has been
uniformly interpreted by the SC to mean ACTUAL or PHYSICAL RESIDENCE not legal domicile.
Alright, there are so many case already: CO vs. CA (70 SCRA 296); FULE vs. CA (14 SCRA 189);
HERNANDEZ vs. RURAL BANK OF THE PHIL (81 SCRA 75); RAYMOND vs. CA (166 SCRA 50);
ESCUERTE vs. CA (193 3CRA 54).
Pareho ang ruling niyan. EXCEPT for one case decided way back in 1956 the case of
CORRE vs. CORRE
100 Phil 221
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FACTS: An American who resides in San Francisco who came to the

Philippines rented an apartment in Manila to sue his wife who is a Filipina. The
wife is from Mindanao. And then the American husband filed the case in Manila
because residente man daw siya in Manila because he rented daw an
apartment in Manila. Now, if you follow the rule, tama man ang husband ba.
HELD: You are not a resident of Manila. Your residence is in San Francisco
that is your domicile. So that is to compel the American to file the case in the
residence of the wife rather than the wife going to Manila.
So the case of CORRE is the only exception where the SC said, residence means domicile.
All the rest, physical! In the case of CORRE, maybe the SC there was just trying to help the
Filipina. If we will interpret the rule on venue as physical, it is the Filipina who will be
inconvenienced. If we say legal residence is the venue, it is the American husband who would be
forced to go to the Mindanao to file. And we should favor our own kababayan. Yan siguro ang
nangyari because that was the only exception eh.
RESIDENCE OF A CORPORATION
Under Rule 1, a corporation can sue and be sued. But what is the residence of a
corporation? Under the corporation law, the residence of a corporation is the place where its
head or main office is situated yung head office ba which is usually stated in the articles of
incorporation.
Now, lets go to some interesting cases on this issue:
CLAVECILLA RADIO SYSTEM vs. ANTILLON
19 SCRA 39 [1967]
FACTS: Clavecilla was sued in Cagayan de Oro City. Clavecilla questioned
the venue because its head office is in Manila. The plaintiff argued that it can be
sued because it has a branch in Cagayan.
ISSUE: Is a corporation a resident of any city or province wherein it has an
office or branch?
HELD: NO. Any person, whether natural or juridical, can only have one
residence. Therefore, a corporation cannot be allowed to file personal actions in
a place other than its principal place of business unless such a place is also the
residence of a co-plaintiff or defendant.
The ruling in the case of ANTALLON was reiterated in the 1993 case of YOUNG AUTO
SUPPLY CO. vs. COURT OF APPEALS (223 SCRA 670)
Because the law said where the plaintiff or any of the principal plaintiffs.. So if the
corporation is suing with someone from Davao, even if my head office is in Manila, I can file
because of the residence of my co-plaintiff or the residence of the defendant. But outside of that,
a corporation cannot sue outside of its head office because its residence is there. That is the case
of YOUNG AUTO SUPPLY.
OR IN THE CASE OF A NON-RESIDENT DEFENDANTS WHERE HE MAY BE FOUND

Suppose the defendnt is not residing here in the Philippines but is just on vacation and you
want to sue him. What is now the point of reference?
Did you notice the phrase or in the case of a non-resident defendants where he may be
found. Now what does that mean? It means to say that the defendant is not actually residing in
the Philippines but he is temporarily around because he is found in the Philippines. Example is a
balikbayan who is still on vacation.
PROBLEM: Suppose a Filipino who is already residing abroad decided to come back this
Christmas for a vacation. When he landed at the Manila Domestic Airport and you are his friend
and the first thing he requested you is, wala pa akong Philippine peso, puro pa dollars. So
pahiramin mo muna ako. I will pay you in one weeks time once I have my dollars exchanged to
pesos. How much do you want? He borrowed from you P15,000.00. One week later, still he has
not paid you and obviously it seems he will not pay you. So you decided to sue him while he is
around to collect the case advance of the P15,000 that you gave him. So, where is the venue of
the action?
A: The law says, generally where the plaintiff resides or where the defendant resides. The
trouble is, the defendant has no residence here because he is already residing abroad. But he is
temporarily here in the Philippines.
You can sue him where he may be found. If he decides to stay in Cebu, that is where the
proper venue rather his permanent residence. So where he may be found is the alternative
venue. The phrase where he may be found means where he may be found here in the
Philippines for a non-resident defendant but temporarily staying in the Philippines.
Q: Suppose a defendant is a non-resident and he is not even here. Like for example, your
neighbor borrowed money from you and the nest thing you heard is that he left the country. He
has already migrated to the states. Of course you know his address there. Can you sue him in the
Philippine court, a defendant who is no loner residing here and is not found in the Philippines?
A: NO, you cannot. Charge it to experience.
Q: Why can you not sue a person not residing here in the Philippines and is not found here
in the first place?
A: There is no way for Philippine courts to acquire jurisdiction over his person. Otherwise,
he will not be bound by the decision.
But in our discussion on the element of jurisdiction: subject matter, person, res and issues, I
told you that the res or the thing in dispute is important because sometimes it takes the place of
jurisdiction over the person of the defendant. So even if the Philippine court cannot acquire
jurisdiction over the person of the defendant but the subject of the controversy (res) is in the
Philippines, then the non-resident defendant can also be sued in the Philippines. The court can
dennisaranabriljdii
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now acquire jurisdiction over the res, subject and since the res is here, the judgment can be
enforced. It is not a useless judgement anymore.
EXAMPLE: He is there but he is the owner of a piece of land here. I want to file a case to
recover ownership over the land here in the Philippines, yaan!
Q: Can I sue the non-resident defendant?
A: YES under Section 3. Even if the person is abroad, the res of the property in dispute is
here and if he loses the case the judgment can be enforced transfer the property to you. So it is
not a useless judgment. That is what Section 3 is all about.
Sec. 3. Venue of actions against nonresidents. - If any of the
defendants does not reside and is not found in the Philippines, and the
action affects the personal status of the plaintiff, or any property of
said defendant located in the Philippines, the action may be
commenced and tried in the court of the place where the plaintiff
resides, or where the property or any portion thereof is situated or
found, (2[c]a)
Q: What is the difference between the non-resident defendant in Section 2 and the nonresident defendant in Section 3?
A: In Section 2, the non-resident defendant may be found in the Philippines. But in Section
3, he does not reside and is not found in the Philippines. So, physically, he is not around.
Q: What actions can be filed against a non-resident defendant who is not even found here in
the Philippines?
A: There are two (2):
1.) The action that affects the personal status of the plaintiff; or
2.) The action affects the property or any portion thereof of said defendants is
located here in the Philippines.
ACTION THAT AFFECTS THE PERSONAL STATUS OF THE PLAINTIFF

EXAMPLE: A young child was abandoned by his illegitimate father. The illegitimate father
left the Philippines for good. The son wants to file a case against the father for compulsory
recognition, at least to improve his status.
Q: Can the child file a case for compulsory acknowledgment here in the Philippines against
the father for compulsory acknowledgment?
A: YES because the action involves the person status of the plaintiff. The res is the status of
the plaintiff who happens to be in the Philippines.
THE ACTION AFFECTS THE PROPERTY OR ANY PORTION THEREOF OF SAID DEFENDANTS IS
LOCATED HERE IN THE PHILIPPINES
Example: The defendant who is already abroad owns a piece of land located here in the
Philippines and I want to recover the ownership of the piece of land.
Q: What is the res?
A: The res is the land which is situated here in the Philippines. Therefore I can sue that
defendant even if he is there because the court can acquire jurisdiction over the res.
In order to validly sue in the Philippine court, a defendant who is no longer residing here
and is no longer found here, the action must be: 1.) action in rem; or 2.) at least quasi-in rem,
because if the action iis for compulsory recognition, that is actually an action in rem. If the suit in
involves a property here in the Philippines, at least that is an action quasi-in rem.
But if the action is purely in personam, then there is no way by which you can sue him.
Example is an action to collect an unpaid loan.
Q: Where is now the proper venue of the action against the non-residents?
A: The law says where the plaintiff resides action which affects the personal status of
defendants, where the property of the defendant located here in the Philippines
Sec. 4. When rule not applicable. - this rule shall not apply a)In those cases where a specific rule or law provides otherwise;
or
b)Where the parties have validly agreed in writing before the
filing of the action on the exclusive venue thereof. (3a, 5a)
A.) IN THOSE CASES WHERE A SPECIFIC RULE OR LAW PROVIDES OTHERWISE;
So, when there is a special rule or law on venue which applies only to certain types of cases,
then that rule will apply rather than Rule 4.
Q: What cases which provides for venue of the action which may be different from what
Rule 4 says?
A: The following:
1.)
A civil action arising from LIBEL under Article 360 of the Revised Penal Code.
Libel could give rise to a civil action for damages. It is considered under the RPC
as one of the independent civil actions. The criminal action for libel shall be filed
simultaneously or separately with the RTC of the:
a.) province or city where the libelous article is printed and first published; or
b.) where any of the offended parties actually resides at the time of the
commission of the offense.
If one of the offended party is a public officer, whose office is in the City of Manila
at the time of the commission of the offense, the action shall be filed (a) in the RTC of
Manila, or (b) in the RTC of the province where he held office at the time of the
commission of the offense.
2.)
Section 5 (4), Article VIII, 1987 Constitution The SC may order a change of venue or
place of trial to avoid a miscarriage of justice as what happened in the case of Mayor
Sanchez.
dennisaranabriljdii
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So these are the examples on the special rules. Alright

B.) WHERE THE PARTIES HAVE VALIDLY AGREED IN WRITING BEFORE
THE FILING OF THE ACTION ON THE EXCLUSIVE VENUE THEREOF.
So, it is possible that A and B will enter into contract providing for suits involving the
violation of the contract, the venue shall be in this particular place. Take note that the stipulation
must be in writing and it is there even before the filing of the action. Alright
EXAMPLE: Contracts of banks and other financing companies. Sometimes it says there that
in case of suits arising out of these contract, the action shall be filed in the City of Makati or
Manila which is neither the residence of the parties.
Q: Now, can we agree to file a case other that were the parties reside?
A: YES because the law says, we can agree on a place where the action will be filed provided
it is in writing and it is stipulated even before the filing of the action.
POLYTRADE CORP. vs. BLANCO
30 SCRA 187
FACTS: Charles and Joshua are both residing here in Davao City. Joshua
borrowed money from Charles, and Joshua executed a promissory note in favor
of Charles which says, I promise to pay Charles the sum of P200,000 one year
from today. In case of a suit arising from this promissory note, the parties agree
to sue and be sued in the City of Manila.
When the note matured, Joshua did not pay. Charles filed a case to collect
the unpaid loan here in Davao City. Charles challenged the venue. According to
Charles, the venue is correct because both of us are residing here in Davao City
and under Rule 4, the venue is where I reside or you reside, at my option. Both of
us are residing here so I sued you here.
Defendant Joshua says, no since there is a stipulation we both agreed upon
that in cases of litigation, the parties agree to sue and be sued in the City of
Manila. So Manila is the correct venue.
ISSUE: Who is correct in this case? A the plaintiff or B the defendant?
HELD: Plaintiff is correct notwithstanding the stipulation. Why? When the
parties stipulated on the venue of the civil action, other that those found in the
Rule of Court, the stipulated venue is considered merely as an ADDITIONAL
venue in addition to where the parties reside. Unless the stipulation contains
RESTRICTIVE words which shows the intention of the parties to limit the place
stipulated as the exclusive venue.
In other words, the parties agree to sue and be sued in the City of Manila, even if so, the
venue of the action is where the plaintiff resides or where the defendant resides in accordance
with Rule 4, and the third venue is according to the stipulation of the parties. So, the case here
has three (3) venues of action. Mamili ka sa tatlong venues because there is nothing in the
agreement that the parties intended that Manila is the only exclusive venue. There is no
restrictive word.
I will change the PROBLEM: Suppose the stipulation contains this statement, in case of suit
arising out of this promissory note or contract, the parties agree to sue and be sued exclusively in
the City of Manila, yaan! Or, to sue and be sued in the City of Manila only. The addition of the
words exclusively or only shows the intention of the parties to limit venue of the action only in
that place. Therefore you cannot apply Rule 4, Sections 1-3. So, in this case, Joshua can move to
dismiss the case because the venue is exclusive.
So in the second exception where there is an agreement in writing on the exclusive venue,
the word exclusive is very important as taken in the ruling in POLYTRADE vs. BLANCO. So if the
venue is not exclusive, Rule 4 still applies and the stipulated venue is just an additional one.
Of course, there are stipulations which you can see clearly the intention of the parties to
limit the venue only in that place. But sometimes, there are stipulations in which it is difficult to
decipher the real intention of the parties whether exclusive or not. Examples of clear stipulations
which calls for the application of the POLYTRADE ruling: in the City of Manila only or the suit shall
be filed in the City of Manila and in no other place.
However, there are cases in which you cannot find the word exclusive or the word only, and
yet the SC said it seems the intention of the parties to limit the venue as exclusive as what
happened in the 1994 case of
GESMUNDO vs. JRB REALTY CORP
234 SCRA 153
FACTS: This involves a lease contract which contain a stipulation on venue.
Here is the language of the lease contract: venue for all suits, whether for breach
hereof or damages or any cause between the LESSOR and the LESSEE, and persons
claiming under each, being the courts of appropriate jurisdiction in Pasay City
In other words, if there is a case, they agreed to file it in the court of Pasay
City.
ISSUE: Is this intention of the parties to make Pasay City an exclusive
venue?
HELD: Pasay City is the exclusive venue. It is true that in Polytrade
Corporation v. Blanco, a stipulation that The parties agree to sue and be sued in
the City of Manila was held to merely provide an additional forum in the absence
of any qualifying or restrictive words. But here, by laying in Pasay City the venue
for all suits, the parties made it plain that in no other place may they bring suit
against each other for breach contract or damages or any other cause between
them and persons claiming under each of them. In other words, the intention of
the parties is to make Pasay City the exclusive venue.
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There are some cases in the SCRA where there is no restrictive word but the SC interpreted
it as restrictive. So it is in conflict with the POLYTRADE ruling because in POLYTRADE, the
stipulated place must be exclusive. Among the cases which seems to conflict with the ruling in
POLYTRADE are the following:
BAUTISTA vs. DE BORJA (18 SCRA 476)
HOECHST vs. TORRES (83 SCRA 297)
This conflict was resolved in the case of PHIL. BANKING vs. TENSUAN (228 SCRA 385)
where the SC ruled that the ruling in BAUTISTA vs. DE BORJA and HOECHST PHILS. vs. TORRES
has been rendered obsolete by the POLYTRADE ruling and subsequent cases reiterated it. So the
ruling in POLYTRADE is the correct ruling. Forget what the SC said in the abovementioned two
cases.
SWEET LINES vs. TEVES
83 SCRA 361
FACTS: This is a Cagayan de Oro case which involves Sweet Lines, a
shipping company with the head office in Cebu. The respondent Teves is the
former City Fiscal of Davao City, former Mayor and became judge of CFI of
Cagayan de Oro City.
There was a group of passenger who rode on the Sweet Lines bound for
Cebu City. During the trip, they were given a crude treatment by the officers of
the vessel. When they came back in Cagayan de Oro City, they filed a suit for
damages against Sweet Lines. They file dht ecase in the former CFI, now RTC, of
Cagayan de Oro City because the plaintiffs are residents of Cagayan de Oro City.
Sweet Lines filed a motion to dismiss questioning the venue of the action
because in the ticket issued by Sweet Lines, it is stipulated that in case of a civil
action arising from the contract of carriage, the venue of the action shall be the
City of Cebu ONLY and in no other place. So there is a restrictive word. Obviously
the lawyers of Sweet Lines knew about Polytrade because they moved to dismiss
the case citing this case.
Judge Teves denied the motion to dismiss the case despite the stipulation.
According to him, it is unfair. If I will dismiss the case based on this stipulation,
the aggrieved parties will be discouraged in going to Cebu. It is very expensive
and they will be inconvenienced. But, if the case will go on in Cagayan de Oro, it
will not inconvenienced Sweet Lines because they have their branch office, their
manage and their own lawyer.
ISSUE: Whether or not Cagayan de Oro is the proper venue.
HELD: YES. Judge Teves was correct in not dismissing the case.
First of all, the stipulation is placed in the ticket. These people never even
bothered to read this. Nakalagay na iyan diyan eh. So either you take it or you
leave it. Therefore, the passengers did not have a hand in preparing that
stipulation. So the contract is a contract of adhesion.
Second, again for the sake of equity, to be fair that these poor people will be
compelled to go to Cebu to file a case there. They will be discouraged. It is very
expensive to go back and forth to Cebu. Whereas, Sweet Lines has the resources,
the means, the lawyers here in Cagayan to litigate. Therefore, it would be
inequitable to compel them or to apply the stipulation there.
The ruling in SWEET LINES is an exception to POLYTRADE despite the exclusive stipulation.
The SC said that the refusal of the court to apply it is correct. There is no grave abuse of
discretion on the part of Judge Teves.
ARQUERO vs. FLOJO
168 SCRA 540
FACTS: Arquero here is lawyer and the municipal mayor of the municipality
of Sta. Teresita, Cagayan Valley. He sent a telegram through the RCPI branch in
Cagayan addressed to Manila. Meron siyang pabor na hihingi-in sa Congressman:
I will go there to Manila, I will see you in your office on this particular date. So
pinadala niya iyong telegrama.
When he went to the office of the congressman after the few days, nagalit
pa yung congressman sa kanya, So you are here to ask for a favor for your own.
Ikaw na ang nangangailangan, pati telegrama ako pa ang pabayarin mo?! Collect
pa! Arquero was stunned eh because he paid the telegram. How come naging
collect? In effect, he was embarrased.
Pagbalik niya sa Cagayan, f-in-ile-an niya ng damages ang RCPI. But in the
RCPI telegraph form, there is a stipulation that venue of any action shall be the
court of Quezon City alone and in no other courts. So the venue is restrictive. With
that, Arquero filed an action for damages in the RTC of Aparri Cagayan and RCPI
moved to dismiss for improper venue, stipulation according to the POLYTRADE
case eh.
The trial court moved to dismiss the case because of this restrictive
stipulation. Arquero went to the SC citing the case of SWEET LINES where
despite the fact of a restrictive stipulation, SC refused to apply the POLYTRADE
ruling.
HELD. The ruling in Sweet Lines vs. Teves does not apply. You are bound by
the stipulation. Why? You are a lawyer eh. Tarantado ka, bakit ka pumirma?! You
are a lawyer. You know all these things. Why did you sign?
So nayari siya. That was taken against him ha! As a matter of fact, it is there
you can read it. It is in the front, pumirma ka pa sa ilalim. In the case of Teves, you
cannot read it. Nasa likod, very small. In other words, you agree to be bound. As a
lawyer, you should know what you are signing.
Now, he last point to remember about venue is the difference between venue and
jurisdiction. In criminal cases, there is no distinction between jurisdiction and venue. The place
of the filing of the case is where the crime is committed or where the essential elements were
committed. Therefore, when the cases is committed in Davao City, you cannot file a case in
Cotabato City. Cotabato has no territorial jurisdiction over the case.
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But in civil cases, if you violate Rule 4, do not say that the court has no jurisdiction. You only
say, venue was improperly laid. Yaan! So, if I will file an ejectment case against you in Davao City
before the MTC but I am ejecting you from your apartment in Tagum, do not make the mistake. If
I move to dismiss on the ground that the MTC has no jurisdiction, you are crazy. The MTC has
jurisdiction over all unlawful detainer cases. Ang walang jurisdiction is the RTC. The correct
ground is: venue is improperly laid. But if you file the unlawful detainer case in the RTC, you
question the jurisdiction of the court, not the place.
So then, what is the main distinction?
Q: Distinguish JURISDICTION from VENUE.
1.)
JURISDICTION refers to the authority the court to hear the case, whereas
VENUE refers only to the place where the action is brought or tried;
2.)
JURISDICTION over the subject matter cannot he waived; whereas

VENUE is waivable and can be subject of agreement;
3.)
JURISDICTION is governed by substantive law Judiciary Law, BP 129; whereas

VENUE is governed by procedural law Rule 4 of the Rules of Court;
4.)
JURISDICTION refers to the relation of the parties to the court; whereas

VENUE refers to the relation between the parties; and
5.)
JURISDICTION limits the courts authority; whereas

VENUE limits plaintiffs rights.
BAR QUESTION: State in what instance the jurisdiction and venue coincide.
A: In CRIMINAL CASES because in criminal cases, venue is territorial jurisdiction. But in
civil cases, jurisdiction and venue are two different things. They do not coincide.
Rule 5
UNIFORM PROCEDURE IN TRIAL COURTS
SECTION 1. Uniform Procedure The procedure in Municipal Trial
Courts shall be the same as in the Regional Trial Courts, except (a)
where a particular provision expressly or impliedly applies only to
either of said courts, or (b) in civil cases governed by the Rule on
Summary Procedure. (n)
The Rules on Procedure starting with Rule 6, the title of the subject matter is procedure in
Regional Trial Courts. However, by express provisions in Section 1, the procedure in the Regional
Trial Court and the procedure in the Municipal Trial Court is the same.
The Rules on Civil Procedure which applies to RTC are also applicable to the MTC except
when a particular provision expressly applies only to either of said courts.
There are provisions where it is very clear and intended only to apply to RTC or MTC. A
good example of this is paragraph (a) is Rule 40 which governs appeals from MTC to RTC. It is
only applicable to MTC. It does not apply to appeals from RTC to Court of Appeals.
The second example would be in civil cases governed by Rules on Summary Procedure.
That would be the last law that we will take up. Rules on Summary Procedure applied only to
MTC. They do not apply to RTC.
Sec. 2 Meaning of Terms. The term Municipal Trial Courts as
used in these Rules shall include Metropolitan Trial Courts, Municipal
Trial Courts in Cities, Municipal Trial Court, and Municipal Circuit
Trial Courts. (1a)
In our structure, we already illustrated the hierarchy of courts. Metropolitan Trial Courts
are only in Manila. Municipal Trial Courts are in cities and municipalities. When the Rule says
Municipal Trial Court, it already includes Metropolitan Trial Courts, MTCC, MCTC. So that we
will not be repetitious.
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Actually, we already touched the word PLEADING before. In the Constitution when we
were asking what is the basis of the authority of the Supreme Court to enact the Rules of Court or
Procedural Law. The Constitution says, the Supreme Court shall have the authority to
promulgate Rules on pleadings, practice and procedure. Then we discussed jurisdiction over the
issues. Jurisdiction over the issues is determined by the allegations in the pleadings.
Q: Define pleadings?
A: PLEADINGS are the written statements of the respective claims and defenses of the
parties submitted to the court for appropriate judgment. (Section 1)
This is the document where a party will state his claim against the defendant; or where the
defendant will state also his defense. Pleadings merely tell a story. You tell your story there, the
other party will tell his story.
And how do you assert your claim in court? Not by calling up a judge over the telephone or
writing a letter to the judge, Dear judge. but through the appropriate pleadings. How do they
look like? The rules are laid down. It becomes clearer in the 3rd year subject known as Legal
Forms. In that subject you will study particular forms. They have patterns. In pleadings, you do it
in legal manner. You do not say, Once upon a time
The counterpart of pleadings in criminal procedure is information, or the criminal
complaint where a prosecutor will tell what crime you are being accused what you did, time,
the victim, etc.
Sec. 2 Pleadings allowed The claims of a party are asserted in a
complaint, counterclaim, cross-claim, third (fourth, etc.) party
complaint, or complaint-in-intervention.
The defenses of a party are alleged in the answer to the pleading
asserting a claim against him.
An answer may be responded to by a reply. (n)
Section 2 tells us what are the pleadings allowed by the Rules of Court. In a civil case, there
are actually two (2) contending parties: (1) the person suing or filing claim; and (2) the person
being sued.
PROCEDURE IN THE REGIONAL TRIAL COURTS

Rule 6
KINDS OF PLEADINGS
SECTION 1. Pleadings Defined. Pleadings are the written statements
of the respective claims and defenses of the parties submitted to the
court for appropriate judgment. (1a)
etc.
Q: If you are the claimant or the plaintiff, in what pleading do you assert your claim?
A: Complaint, counterclaim, cross-claim, third-party complaint or fourth-party complaint,
These are the different pleadings allowed by the Rules. Of course, maybe, the only thing that
you are familiar with is the complaint. As we go over the Rules, you will understand what do you
mean by those pleadings.
On the other hand, if you are the party sued, you also have to file your pleading or your
defense. It is known as the ANSWER. The defenses of a party are alleged in the answer to the
pleading asserting a claim against him. If I file a complaint against you, in response, you will file
an answer.
2.)
In last paragraph, an answer may be responded by a REPLY. I file a complaint. You file an
answer invoking your defenses. If I want to respond to your defenses, I will file a REPLY.
COMPLAINT
ANSWER
34
On Nov. 7, 1996, defendant secured a loan from plaintiff the sum of

P30,000.00 payable within one (1) year form said date with legal
interest;
The account is already due. Despite repeated demands, defendant
failed to and refused to pay;
PRAYER
That is the pattern.

Q: Summarizing all of them, what are the know pleadings recognized by the law on Civil
Procedure?
A: There are seven (7) types of pleadings:
1.) Complaint;
2.) Answer;
3.) Counterclaim;
4.) Cross-claim;
5.) Reply
6.) Third (Fourth, Fifth, etc.) Party Complaint;
7.) Complaint-in-Intervention.
Let us go over each one of them. How do they function?
A.) COMPLAINT
Sec. 3. Complaint The complaint is the pleading alleging the
plaintiffs cause or causes of action. The names and residences of the
plaintiff and defendant must be stated in the complaint.
Q: Define complaint.
A: COMPLAINT is the pleading where the plaintiff will allege his cause or causes of action. A
complaint is also called the INITIATORY PLEADING. Because it is actually the first pleading filed
in court. It is the pleading that starts the ball rolling. It is the pleading that initiates the civil
action.
Of course, the names and residences of the defendants must be stated in the complaint. Do
you know the pattern for a complaint?
For EXAMPLE: Mr. Pito wants to sue Mr. Peloton to collect an unpaid loan. Mr. Peloton
borrowed money from Mr. Pito and refused to pay. Normally, it starts with an introduction:
Plaintiff, through counsel, respectfully alleges that Then it is followed by paragraphs which
are numbered. For instance:
Illustration:
1.)
3.)
REPLY
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Plaintiff Mr. Pito, of legal age, is a resident of Matina, Davao City;

whereas defendant Mr. Peloton also of legal age, a resident of Bajada,
Davao City;
WHEREFORE, it is respectfully prayed that judgment be

rendered against the defendant ordering him to pay the loan of
P30,000.00 and interest in favor of the plaintiff.
It is simple. The complaint is composed of 3 paragraphs only humiram siya ng pera, ayaw
magbayad. Thats all. That is the pattern of a complaint. Your allegations must contain the four
(4) elements of a Cause of Action the Right, the Obligation, the Delict or Wrong or Violation of
Your Right, and the Damage. Hindi kailangang mahaba ang complaint.
It becomes clearer in the subject of Legal Forms. That is the last subject in the Bar Exam,
Legal Ethics & Practical Exercises. The examinee will be asked, for instance, to prepare a Contract
of Mortgage, or prepare a Complaint for Unlawful Detainer. There are hundreds of forms and you
must be prepared to write down a sample.
B.) ANSWER
Sec. 4 Answer An answer is a pleading in which a defending
party sets forth his defenses. (4a)
I am the plaintiff. I file the complaint. You received the complaint. You are now required to
respond.
Q: What is the pleading where you respond?
A: It is called the ANSWER. That is where you will state your defenses. That is why an
ANSWER is called a Responsive Pleading.
Q: Why is it called Responsive Pleading?
A: Because it is the pleading which is filed in response to the complaint. It is where you
respond to the cause of action. That is where you state your defenses.
It is something which is not found in Criminal Procedure. A: NO, there is no such thing as
Answer in Criminal Procedure.
Q: If you are charged with a crime, how do you answer?
A: By pleading guilty or not guilty. That is the answer. When you plead guilty, tapos na! If
you say not guilty, trial will proceed. No writing of defenses. No written answer in criminal cases.
It (pleadings) only applies to civil cases where you allege your defenses.
Q: What are the defenses under the Rules?
A: That is Section 5.
Sec. 5 Defenses Defenses may either be negative or affirmative.

A NEGATIVE DEFENSE is the specific denial of the material fact
or facts alleged in the pleading of the claimant essential to his cause or
causes of action.
An AFFIRMATIVE DEFENSE is an allegation of a new matter
which, while hypothetically admitting the material allegations in the
pleading of the claimant, would nevertheless prevent or bar recovery
by him.
Defenses may either be negative or affirmative.
b.) Answer; NEGATIVE DEFENSES;
Q: Define an NEGATIVE defense.
A: Paragraph [a]: Briefly, it is a defense of specific denial where you deny the statement in
the complaint and you state the facts and the reason/s on which your denial is based. In a
negative defense, the defendant specifically denies a material fact or facts alleged in the pleading
of the claimant essential to his cause of action.
EXAMPLE: The complaint says in paragraph 2, On November 6, 1996, defendant secured a
loan from plaintiff in the amount of P30,000.00 payable one (1) year from November 6, 1996.
The defendant will say in his answer:
Defendant specifically denies the allegation in Paragraph 2 of the
complaint. The truth of the matter being he never secured any loan from plaintiff
because he does not even know the plaintiff and he did not see his face before.
That is a negative defense. You said I borrowed money from you. No, I dont even know
you. I have not seen you before. He denies the existence of the loan. That is known as the
negative defense. It is a denial of a material fact which constitutes the plaintiffs cause of action.
Thats why it is briefly called a Defense of Specific Denial.
b.) Answer; AFFIRMATIVE DEFENSES
Q: Define an AFFIRMATIVE defense.
A: In paragraph (b), it is briefly called a defense of confession and avoidance because, while
the defendant may admit the material allegation in the complaint, however, he will plead a new
matter which will prevent a recovery by the plaintiff. I admit what you are saying in the
complaint but still you are not entitled to recover from me.
EXAMPLE: The defendant may admit what you are saying in your complaint. I borrowed
money from you admitted! The account is due admitted! I have not paid you admitted.
However, you cannot collect from me because the account has already prescribed. Meaning, I
will admit what you are saying but just the same, I am not liable. Kaya nga, you confess, eh. I
confess to what you say but I still avoid liability.
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Examples of affirmative defenses are: fraud, statute of limitations, release, payment,

illegality, statute of frauds, estoppel, former recovery, discharge in bankruptcy, and any other
matter by way of confession and avoidance.
Suppose, you sue me for damages arising from breach of contract. I admit I entered into a
contract but I have no obligation to comply because the contract is null and void. Or, the contract
is illegal. Or, the stipulation is contrary to public policy, therefore, I am not bound. I admit what
you say but I am not liable because of the illegality of the subject matter of the contract.
Or, you sue me because according to you, I entered into a contract and I refused to comply.
So, you file a case against me for specific performance or for damages. Then I say: Its true that
I entered into a contract with you. Its true I did not comply. But there is nothing you can do
because the contract is oral and the contract is covered by the statute of frauds. In order to be
enforceable, we should have reduced it into writing. Since we never reduced it into writing, I am
not bound to comply.
c.) COUNTERCLAIMS
Sec. 6. Counterclaim. - A counterclaim is any claim which a
defending party may have against an opposing party. (6a)
EXAMPLE: You file a case against me for damages to your car. According to you in your
complaint, while you were driving your car along the highway carefully. I came along driving
recklessly and bumped your car causing damages amounting to P50,000.00 for repair. Your
allegation is based on negligence on my part.
My answer is denial: That is not true! I deny that! I was the one driving carefully and you
were driving carelessly and negligently. Therefore, if you are the proximate cause of the accident,
Im not liable for the damage of your car. Thats my answer Im not liable because you are
negligent. Because you were the one negligent, my car was also damaged. I am not liable for the
damage on your car. As a matter of fact, you are the one that should be held liable to pay for the
damage of my car. I am now claiming for the damage of P50,000.00. That is called
COUNTERCLAIM.
According to a lawyer who is fluent in Cebuano, he called it balos. He was explaining to his
client that they have counterclaim. Thats a legal term, eh.
Therefore, there is one civil case but there are two (2) causes involved the main cause of
action in the complaint and that in the counterclaim. There are two (2) issues to be resolved by
the court.
Q: If your complaint against me is to recover a sum of money, should my counterclaim also
involve recovery of sum of money?
A: NO. There is no such rule that these two (2) cases should be similar in nature. (De Borja
vs. De Borja, 101 Phil. 911) It is possible for you to file case for recovery of a piece of land and my
counterclaim is recovery of damages arising from a vehicular accident.
Q: Suppose your claim against me is One (1) Million, is it possible that my counterclaim
against you is Two (2) Million?
A: YES. There is no rule which limits my counterclaim to the same amount you are
claiming. A counterclaim need not diminish or defeat the recovery sought by the opposing party,
but may claim relief exceeding in amount or different I kind from that sought by the opposing
party. (De Borja vs. De Borja, 101 Phil. 911)
Q: You file a case against me for recovery of unpaid loan. My counterclaim is, rescission of
partnership contract. Is the counterclaim proper?
A: Yes although there is no connection between what you are asking and what my answer
is. But what is important is tayong dalawa ang naglalaban. If you will not allow me to file my
counterclaim against you, that will be another case in the future. Since nandito na rin tayo, so
lahat ng ating reklamo, we might as well have to finish it. That is allowed.
Q: Why is it that law allows the defendant to counter sue by way of counterclaim the
plaintiff?
A: The purpose there is apparently TO AVOID MULTIPLICITY OF SUITS. If you have a cause
of action against me, I will sue you, in the future it will also lead to another case where you will
also sue me.
DEBORJA vs. DEBORJA
101 Phil 911
FACTS: A died, of course, what survives after that is the estate. X was
appointed as administrator or legal representative. W owes a sum of money to
the estate of A and X filed a case against W to collect the unpaid loan. X is called
the REPRESENTATIVE PARTY under Rule 3, Section 3. W filed an answer and
that W has a claim against X. W filed a counterclaim against X in the case.
HELD: The counterclaim is improper. When X sued W, X is not suing in his
own personal capacity. He is acting as administrator of the estate of A. The real
plaintiff is the estate of A. X is just the legal representative. Therefore, you cannot
file a counterclaim against X in the latters personal capacity when X is suing W in
a representative capacity.
The SC said that the plaintiff should be sued in a counterclaim in the SAME CAPACITY that
he is suing the defendant. Thats a principle to remember.
PERMISSIVE & COMPULSORY COUNTERCLAIMS

Sec. 7 Compulsory counterclaim A compulsory counterclaim is
one which, being cognizable by the regular courts of justice, arises out
of or is connected with the transaction or occurrence constituting the
subject matter of the opposing partys claim and does not require for
its adjudication the presence of third parties of who the court cannot
acquire jurisdiction. Such a counterclaim must be within the
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jurisdiction of the court both as to the amount and the nature thereof,
except that in the original action before the Regional Trial Court, the
counterclaim may be considered compulsory.
Under the Rules, there are two types of counterclaim. 1) COMPULSORY COUNTERCLAIM
and, 2) PERMISSIVE COUNTERCLAIM.
Q: How do you distinguish one from the other? When is a counterclaim compulsory and
when is it permissive?
A: The ELEMENTS of a COMPULSORY COUNTERCLAIM are found in Section 7. If we will
outline Section 7, we will see that a counterclaim is compulsory if the following requisites are
present:
1.)
2.)
3.)
4.)
5.)
It is cognizable by the regular courts of justice;

It arises out of or it is connected with a transaction or occurrence constituting a
subject matter of the opposing partys claim;
It does not require for its adjudication the presence of third parties of who the court
cannot acquire jurisdiction;
It must be within the jurisdiction of the court, both as to the amount and the nature
thereof, except that in an original action before the RTC, the counterclaim may be
considered compulsory regardless of the amount; and
The defending party has a counterclaim at the time he files his answer.
The fifth requisite is not found in Section 7 but in Rule 11, Section 8:
Rule 11, Sec. 8. Existing counterclaim or cross-claim. - A compulsory
counterclaim or a cross-claim that a defending party has at the time he
files his answer shall be contained therein. (8a, R6)
Another way of saying it is, the counterclaim has already matured at the time he files his
answer. That is the fifth requisite.
Q: What happens if one of these requisites is missing?
A: If one of the five requisites is missing, the counterclaim is permissive in nature.
We will discuss the elements of a compulsory counterclaim one by one.
First Element: A COUNTERCLAIM TO BE COMPULSORY MUST BE COGNIZABLE BY THE
REGULAR COURTS.
In other words, if you file a complaint against me and I have a counterclaim against you in
the Labor Code, then it cannot be classified as a compulsory claim because how can I invoke
against you a claim which is cognizable by the NLRC before the RTC?
Second Element: IT ARISES OUT OF OR IT IS CONNECTED WITH A

TRANSACTION OR OCCURRENCE CONSTITUTING A SUBJECT MATTER OF
THE OPPOSING PARTYS CLAIM
The second requisite is the most important. A counterclaim, to be compulsory, must arise
out of or connected with the transaction or occurrence constituting a subject matter of the
opposing party concerned. It must arise out of or is connected with a transaction or occurrence
constituting a subject matter of the opposing partys claim. It must be logically related to the
subject matter of the main action.
So the rule is, if the counterclaim did not arise out of or is not connected with the
transaction or occurrence constituting the subject matter of the opposing partys concern, the
counterclaim must be permissive in nature.
PROBLEM: Emily filed a case against Regina for damages arising from a vehicle collision.
According to Emily, the case of the accident is the negligence of the defendant in driving her car.
Her car bumped the car of Emily and was damaged. So, Emily is holding Regina liable for the
damage on her car. Regina denied that she was negligent. According to Regina, No, I am not
negligent. As a matter of fact, you (Emily) were the one negligent, and because of that negligence,
my car was also damaged. So you should be the one to pay damages. Parang ganyan ba.
Q: Is the counterclaim of Regina arising out of or is connected with the transaction or
occurrence constituting the subject matter of the opposing party?
A: YES because we are talking of the same bumping. You bumped my car, you say I bumped
your car. So we are talking of the same event or transaction.
PROBLEM: Thea G. (as in Gamay) files a case against me for recovery of a piece of land.
According to her, she is the owner of the land which Im occupying. Now, I file my answer, and
then I said, Ms. Guadalope, I spent a lot of money for necessary expenses to preserve the land.
You are also liable to reimburse me for the necessary improvements expenses I introduced on
the land. Under the law on Property, a defendant or possessor is entitled to reimbursement for
necessary improvements and expenses. So she is trying to recover the piece of land, I am now
asking her to reimburse me for all necessary expenses that I spent on the land.
Q: Is my counterclaim arising out of or connected with the subject matter of your claim or
not?
A: YES. We are talking of the same subject matter. Thus, the counterclaim is compulsory.
PROBLEM: Thea G. files a case against me for recovery of a piece of land. My counterclaim
against her is damages arising from a vehicular collision.
Q: Is my counterclaim arising out of a subject matter of your action?
A: NO. It is completely different. Thus, that is a permissive counterclaim.
So, those are the examples. That is why, the second requisite is the most important element
a counterclaim must arise out of or is connected with the subject matter or a transaction or the
event or the main action. By the way, the second element is considered the most important
element of compulsory counterclaim because according to the SC in the 1992 case of
MELITON vs. COURT OF APPEALS
216 SCRA 485
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HELD: It has been postulated that while a number of criteria have been
advanced for the determination of whether the counterclaim is compulsory or
permissive, the one compelling test of compulsoriness is the logical relationship
between the claim alleged in the complaint and that in the counterclaim, that is,
where conducting separate trials of the respective claims of the parties would
entail a substantial duplication of effort and time, as where they involve many of
the same factual and/or legal issues.
Q: What is the importance of determining whether the claim is compulsory or permissive?
A: A compulsory counterclaim must be invoked in the same action. Iit cannot be the subject
matter of a separate action. Unlike in permissive where you have the choice of invoking it in the
same case, or in a separate action, compulsory counterclaim must be invoked in the same action
otherwise it will be barred. That is found in Rule 9, Section 2:
Rule 9, Sec. 2. Compulsory counterclaim, or cross-claim, not set up
barred. - A compulsory counter-claim or a cross-claim, not set up shall
be barred. (4a)
So if I do not file a counterclaim against you in the same action, under Rule 9, the
counterclaim is barred forever. I cannot claim it against you in any other case in the future. But if
the counterclaim is permissive and I will not raise it as a counterclaim, it is not barred. It can still
be invoked in another case against you. It can be a subject matter of a separate action.
Let us try to apply that principle to the case cited.
PROBLEM: Vanessa files a case against me for damages arising from vehicular collision. Her
car is damaged, my car is damaged. In my answer, I denied negligence but I did not claim from
her the damage to my vehicle. After the trial, court found the plaintiff at fault. So, the complaint of
Vanessa was dismissed. So panalo ako. Balikan ko siya ngayon. This time I will file a case against
her to recover damages for the damage to my car since I was able to prove that she was negligent
and not me.
Q: What will happen to my case now?
A: My case will be dismissed because I did not raise that cause of action as a counterclaim.
Compulsory yan eh. So since you did not raise, is barred forever.
PROBLEM: Aileen files a case against me for recovery of a piece of land. After trial, talo ako.
The court said that I should return the land to her. So isinauli ko na. Ngayon, kailangan bayaran
niya naman ako for the necessary expenses. So, I will file a case against her. She moved to dismiss
barred, because I should have raised that as a counterclaim. I cannot file another case involving
that cause of action. That is the effect of failure to raise the compulsory counterclaim in the case
filed against you.
PROBLEM: Now, suppose the counterclaim is PERMISSIVE. Pauline files case against me for
recovery of land. My cause of action against her is damages arising against a vehicular collision.
Obviously, the counterclaim is permissive.
Q: Is the counterclaim allowed?
A: Yes, allowed.
Q: Pauline will file a case against me for damages arising from vehicular collision. My
decision is not to file a counterclaim but to file another case against her. Is that allowed?
A: Yes, that is allowed. Meaning, I may or may not raise it as a counterclaim because it is
permissive. I am permitted to raise it as a counterclaim but I am not obliged. I may decided to file
another action against you. That is the importance between a compulsory counterclaim and a
permissive counterclaim.
Third Requisite: IT DOES NOT REQUIRE FOR ITS ADJUDICATION PRESENCE OF
THIRD PARTIES OF WHOM THE COURT CANNOT ACQUIRE JURISDICTION.
Meaning, if my counterclaim against you will involve the presence of an indispensable party
who is, lets say, abroad, and therefore, the court cannot acquire jurisdiction over him, and since
it involves an indispensable party, I will not raise it as a counterclaim.
Q: Will it be barred?
A: NO. If I will file my counterclaim, it will involve another party who is indispensable. The
trouble is, he is not around. Therefore, the counterclaim is not barred because the third element
is missing.
Fourth Element: THAT THE COUNTERCLAIM MUST BE WITHIN THE
JURISDICTION OF THE COURT BOTH AS TO THE AMOUNT AND NATURE THEREOF.
Q: I will file a case against you for forcible entry. I want to recover a piece of land. Where is
the jurisdiction of that case?
A: MTC. Squatting. I will recover a land from a squatter.
Review: In the Law on Property, even if you are a possessor in bad faith, he is entitled to
reimbursement for necessary expenses. The theory there is, even if he is a possessor in bad faith,
the expenses redounded to the benefit of the land owner. Anyway, you will spend them just the
same as the land owner will have to spend for them. So it will not be fair if he is not reimbursed.
Thats our premise, noh?
PROBLEM: Now, the defendant would like to claim for reimbursement for the necessary
expenses that he spent in my lot. The case I filed against you is forcible entry in the MTC. Your
necessary expenses amount to P300,000.
Q: Should you raise it as a compulsory counterclaim in the forcible entry case?
A: NO.
Q: Does it arise out of or connected with the transaction which is the subject matter of the
main action? Why not compulsory?
A: Because the MTC has no jurisdiction over the P300,000 amount for the necessary
expenses. This time, that is the missing element.
Q: How will the defendant claim reimbursement?
A: He has to file with the RTC a case for reimbursement. He cannot use that as a
counterclaim for the forcible entry case because the MTC has no jurisdiction on a counterclaim
where the amount is over P200,000.00.
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I will reverse the problem:

PROBLEM: The plaintiff filed against the defendant an action for accion publiciana
recovery for a piece of land where the value of the property is P1 million. So the case should be
filed in the RTC. Now, the defendant is claiming for the reimbursement of the improvements
thereon (necessary expenses) amounting to P50,000.
Q: Should the defendant raise that as a counterclaim in the accion publiciana case?
A: YES.
In the first example, the counterclaim is above the jurisdiction of the MTC. This time, the
amount for the counterclaim is below the jurisdiction of the RTC. So the RTC can claim
jurisdiction.
Q: How can the RTC try a counterclaim when the claim is only P50,000?
A: It is in accordance with the exception under Section 7: except that in an original action
before the RTC, the counterclaim may be considered compulsory regardless of the amount. This
means that the main action is accion publicianaRTC. The counterclaim is reimbursement for
necessary expenses with arose out of the same land. Normally, the RTC cannot try that but the
answer to this question is YES.
The RTC can award a claim for damages even though the claim is below its jurisdiction. The
principle is: Since the counterclaim is compulsory, jurisdiction over the main action
automatically carries with it jurisdiction over the compulsory counterclaim. The compulsory
counterclaim is merely incidental to the main action. Jurisdiction of the RTC over the main action
necessarily carries with it jurisdiction over the compulsory counterclaim which is merely
ancillary.
But the first example is baliktad. If the main action is with the MTC, it cannot try the
counterclaim with the RTC. It is beyond its jurisdiction. It is not covered by the exception. But if it
is the main action which is within the jurisdiction of the RTC, it can try a counterclaim which is
below its jurisdiction provided it arose out or is connected with the transaction.
That exception is not written in the prior rules but it is a recognized exception laid down by
the SC which is now written down in the law. In the case of
MACEDA vs. COURT OF APPEALS
176 SCRA 440
HELD: The jurisdiction of the MTC in a civil action for sum of money is
limited to a demand that does not exceed P100,000 (now P200,000) exclusive of
interest and costs. A counterclaim beyond its jurisdiction and limit may be
pleaded only by way of defense to weaken the plaintiffs claim, but not to obtain
affirmative relief.
Fifth Requisite: THE DEFENDING PARTY HAS A COUNTERCLAIM AT THE
TIME HE FILES HIS ANSWER.
How can I make a claim against you which is not yet existing? Even if all the other requisites
are present, the counterclaim would still not be compulsory because how can one invoke
something now which he can acquire in the future?
So, those are the five essential elements. You remove one, the counterclaim becomes
permissive.
Q: Again. What is the importance of distinguishing whether the counterclaim is compulsory
or permissive?
A: If the counterclaim is compulsory, the defendant is obliged under the law to raise it as a
counterclaim in the action where he is being sued. If he fails to invoke it, it is barred forever
(Rule 9 Section 2).
If the counterclaim is permissive, the defendant has a choice of raising it as a counterclaim
in the case filed against him or he may decide to file another action against the plaintiff, raising it
as his cause of action. It is permitted but not obliged.
COUNTERCLAIMS IN CRIMINAL CASES
JAVIER vs. IAC
171 SCRA 605
FACTS: The Javier spouses filed a criminal case against Leon Gutierrez Jr,
under BP 22 or the Bouncing Check Law, for issuing a bad check. The criminal
case was filed before the RTC of Makati. The complainants did not reserve the
civil action. The implication is that the claim for civil liability is deemed instituted
with the criminal case.
Gutierrez in turn filed a civil action for damages against the Javier spouses
in the RTC of Catarman, Northern Samar, where he accused spouses of having
tricked him into signing the check. According to him, because you tricked me
into signing the check for which you are suing me, Im holding you liable for
damages.
What happened now is that he was being criminally sued in Makati but
defending himself in Catarman, Northern Samar. He is explaining in the Samar
court what he should be doing in the Makati court.
HELD: The civil case in Samar should be dismissed. It must be in the Makati
court that Gutierrez, as accused in the criminal charge of violation of BP 22,
should explain why he issued the bouncing check. He should explain that story in
Makati and not in Samar.
This should have been done in the form of a counterclaim for damages for
the alleged deception by the Javier spouses. In fact, the counterclaim was
compulsory and should have been filed by Gutierrez upon the implied institution
of the civil action for damages in the criminal case.
What the SC is saying is, since the civil action for damages is impliedly instituted in the
criminal case, and he wants to hold you liable for filing this case, he should file a counterclaim
against you in the criminal case. What is unique was that for the first time in the Philippine
Procedural Law, SC laid down the rule that there is such thing as a counterclaim in a criminal
case, because, normally, counterclaims are only recognized in civil cases. But since the civil
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39
action is deemed instituted in the criminal case, the accused can file a counterclaim against the
offended party in the criminal action.
The trouble in this ruling is that, it has been subjected to a lot of criticisms by academicians
professors of Remedial Law, authors they criticized the ruling. It provokes more problems
than answers. A justice of the SC remarked, I think we made a mistake (privately ba) in the
Javier ruling. Kaya it was never repeated.
The SC, in 1997, had another chance to comment on Javier in the case of
CABAERO vs. CANTOS
271 SCRA 392, en banc
NOTE: Here, the Javier ruling was set aside.
HELD: The logic and cogency of Javier notwithstanding, some reservations
and concerns were voiced out by members of the Court during the deliberations
on the present case. These were engendered by the obvious lacuna in the Rules
of Court, which contains no express provision for the adjudication of a
counterclaim in a civil action impliedly instituted in a criminal case.
By the foregoing discussion, we do not imply any fault in Javier. The real
problem lies in the absence of clear-cut rules governing the prosecution of
impliedly instituted civil actions and the necessary consequences and
implications thereof. For this reason, the counter-claim of the accused cannot be
tried together with the criminal case because, as already discussed, it will
unnecessarily complicate and confuse the criminal proceedings. Thus, the trial
court should confine itself to the criminal aspect and the possible civil liability of
the accused arising out of the crime. The counter-claim (and cross-claim or third
party complaint, if any) should be set aside or refused cognizance without
prejudice to their filing in separate proceedings at the proper time.
At balance, until there are definitive rules of procedure to govern the
institution, prosecution and resolution of the civil aspect and the consequences
and implications thereof impliedly instituted in a criminal case, trial courts
should limit their jurisdiction to the civil liability of the accused arising from the
criminal case.
This means SC admitted that the Javier doctrine put more problems and confusions in the
absence of specific rules. The counterclaim should not be tried together in a criminal case. The
trial court should confine itself in the criminal action and that the counterclaim should be set
aside without prejudice to its right in setting up actions in the civil action.
NOTE: The ruling in the case of CABAERO is now incorporated in the last paragraph of
Section 1, paragraph [a], Rule 111 of the 2000 Revised Criminal Procedure:
No counterclaim, cross-claim or third-party complaint may be
filed by the accused in the criminal case, but any cause of action which
could have been the subject thereof may be litigated in a separate civil
action.
D.) CROSS-CLAIMS
Sec. 8. Cross-claim. A cross-claim is any claim by one party against
a co-party arising out of the transaction or occurrence that is the
subject matter either of the original action or of a counterclaim
therein. Such cross-claim may include a claim that the party against
whom it is asserted is or may be liable to the cross-claimant for all or
part of a claim asserted in the action against the cross-claimant.(7)
A cross claim is a claim by one party against a co-party. It may be a claim by defendant
against his co-defendant arising out of the subject matter of the main action.
The law says that the cross-claim arises out of the transaction or occurrence that is the
subject matter of the original action. In other words, the cross-claimant will assert that the
cross-defendant is liable to him for all or part of the claim asserted in the main action against the
cross-claimant.
Take note that the cross-claim of Jet against Pao is merely an off-short of the case filed by
Dean against Jet and Pao. Meaning, it arises out of the same transaction or occurrence that is the
subject matter of the case filed by Dean against them.
2.)
The life of the CROSS-CLAIM depends on the life of the main action. A cross-claim
is merely a consequence of the case filed by the plaintiff against the
defendants. No main action, no cross-claim (RUIZ, JR. vs. CA, infra). Whereas,
In a COUNTERCLAIM, you can kill the main action, still the counterclaim survives.
3.)
A COUNTERCLAIM may be asserted whether or not it arises out of the same

transaction or occurrence that is the subject matter of the action, whereas,
A CROSS-CLAIM must always arise out of the same transaction or occurrence
that is the subject matter of the action.
Take note that a cross-claim is any claim by one party against a co-party arising out of the
transaction of occurrence that is the subject matter of the original action or of a counterclaim
therein. So, a cross-claim may arise our either of the original action or counter-claim therein.
EXAMPLE: Jet and Pao file a case against Dean. Dean files his answer with a counterclaim
against the plaintiffs Jet and Pao. So Jet and Pao will now become defendants with respect to the
counterclaim filed by Dean. So Jet now can file a cross-claim against Pao arising out of the
counterclaim. So this is an example of a plaintiff filing a cross-claim against his co-plaintiff
because of the counterclaim.
HYPOTHETICAL EXAMPLE:
1.)
PROBLEM: Suppose Dean files a case against Jet and Pao to collect a promissory note signed
by Jet and Pao. Tapos, sinabi ni Jet in his cross-claim, Well, since we are already here, I also have
a claim against Pao for damages arising from a vehicular collision.
Q: Is the cross-claim allowed in the problem?
A: NO. The cross-claim is improper. It has no connection with the complaint of Dean against
Jet and Pao. A counter-claim must always arise out of a transaction or occurrence that is the
subject matter of the main action.
BAR QUESTION: Distinguish a COUNTERCLAIM from a CROSS-CLAIM.
1.) A COUNTERCLAIM is a complaint by the defendant against the plaintiff, whereas,
A CROSS-CLAIM is a claim by a defendant against a co-defendant;
40
Example: Pao case filed against Jet to collect a loan. Jet files a
COUNTERCLAIM against Pao to recover a piece of land. That is
allowed and that is a permissive counterclaim. But suppose Dean files
a case to collect a loan against Jet and Pao. Jet files a CROSS-CLAIM
against Pao to recover a piece of land.
Q: Will it be allowed?
A: Not allowed! It has no connection with the subject matter of
the main action.
EXAMPLE: Jet and Pao are solidary debtors for the sum of P100,000. Jet and Pao signed a
promissory note in favor of Dean to collect the sum of P100,000. However, although Jet signed
the promissory note, he did not get a single centavo. Everything went to Pao. Both of them are
now sued. According to Jet, Actually there is a possibility that I will pay the P100,000 to Dean
when actually I did not even get a single centavo out of it. Everything went to Pao [bwiset!]!
Therefore, Jet will now file a case against Pao where he will allege that if Jet will be held liable to
Dean, Pao will reimburse him (Jet). So, Jet will also file a claim in the same action against Pao.
Now, the claim filed by Jet against his co-defendant Pao is called a CROSS-CLAIM where Jet
is called defendant in the case filed by Dean and a cross-claimant against Pao. Pao is also the
defendant in the case filed by Dean and a cross-defendant with respect to the cross-claim filed by
Jet. So that is another case which a defendant is filing against another defendant.
dennisaranabriljdii
Mortz and Charles, plaintiffs, filed a case against Jet and Pao, defendants. There are
two plaintiffs suing two different defendants on a promissory note. Both Jet and Pao
signed the promissory note in favor of Mortz and Charles:
COMPLAINT (Collection case Main Action):
MORTZ and CHARLES [total: 785 lbs.], plaintiffs
-versusJET and PAO, defendants
2.)
Now, according to Jet, every centavo of the loan went to Pao. So Jet files a cross-claim
against Pao:
CROSS-CLAIM ON THE MAIN ACTION
Defendant JET [feather weight], now cross-claimant
-versus-
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41
Defendant PAO [heavy weight], now cross-defendant

3.)
Jet also says, Actually may reklamo ako sa inyong dalawa (Mortz and Charles)
because you entered my land and gathered some of its product [mga patay gutom!!].
Nag-file siya ng counterclaim against both Mortz and Charles. In the counter-claim of
Jet, ang defendants ay si Mortz and Charles for the accounting of the improvements on
the land:
COUNTERCLAIM OF JET
Defendant JET, now plaintiff
-versusPlaintiffs MORTZ and CHARLES, now co-defendants
4.)
Mortz now will answer the counterclaim of Jet, Actually, the damages on land was not
caused by me. Si Charles man ang may kasalanan ba! Yun ang patay gutom!! So Mortz
files a cross-claim against co-plaintiff Charles arising out to the counterclaim of Jet:
CROSS-CLAIM ARISING FROM THE COUNTERCLAIM OF JET
Plaintiff MORTZ, now cross-claimant
-versusPlaintiff CHARLES, now cross-defendant
5.)
Now, according to Pao, Actually last month, a car owned by both of you (Mortz and
Charles) bumped my car and that my car was damaged. So, nag-file naman si Pao ng
counterclaim against Mortz and Charles for the damage of the car.
COUNTERCLAIM OF PAO
Defendant PAO, now plaintiff
-versusPlaintiffs MORTZ and CHARLES, now defendants
6.)
Sabi ni Charles, Im not the owner of the car. Si Mortz ang owner. Gago! So crossclaim naman siya (Charles) kay Mortz:
CROSS-CLAIM ARISING FROM THE COUNTERCLAIM OF PAO
Plaintiff CHARLES, now cross-claimant
-versusPlaintiff MORTZ, now cross-defendant
Ilan lahat ang kaso? There are six (6) cases which are to be decided in the same action. This
rarely happens, but it is possible under the rules. The obvious PURPOSE of these is to avoid
multiplicity of suits and toward these ends. According to the SC, the rules allow in a certain cases
and even compel a petitioner to combine in one litigation these conflicting claims most
particularly when they arise out of the same transaction. The rule does not only allow a
permissive counterclaim but the parties are even compelled to raise them in a compulsory
counter-claim.
RUIZ, JR. vs. COURT OF APPEALS

212 SCRA 660
FACTS: Dean files a case against Jet and Pao. Jet files a cross-claim against
Pao. After a while, the case against Jet and Pao was dismissed.
ISSUE: What happens to the cross-claim of Jet against Pao?
HELD: When the main action was dismissed, the cross-action must also be
dismissed. The life of a cross-claim depends on the life of the main action. If the
main action is dismissed, the cross-claim will have to be automatically dismissed.
A cross-claim could not be the subject of independent adjudication once it
lost the nexus upon which its life depended. The cross-claimants cannot claim
more rights than the plaintiffs themselves, on whose cause of action the crossclaim depended. The dismissal of the complaint divested the cross-claimants of
whatever appealable interest they might have had before and also made the
cross-claim itself no longer viable
Whereas, the counterclaim can exist alone without the complaint.
EXAMPLE: Pao filed a case against Jet for the recovery of a piece of land. Jets counterclaim
is damages arising from a vehicular accident. Na-dismiss ang kaso ni Pao wala na yung
recovery of a piece of land. The counterclaim of Jet can still remain alive even if the main action is
dead.
But in a cross-claim, once the main action is dead, the cross-claim is also automatically dead
too. What is there to reimburse when the complainant has been dismissed? Aber?!
COUNTER COUNTERCLAIM and COUNTER CROSS-CLAIM
Sec. 9. Counter-counterclaims and counter-cross-claims. A
counterclaim may be asserted against an original counter-claimant.
A cross-claim may also be filed against an original crossclaimant.(n)
Section 9 is a new provision. There is such a thing as counter-counterclaim and countercross-claim. The concept of counter-counter-claim is not new. As a matter of fact, that was asked
in the bar years ago.
EXAMPLE: Chams filed against you an action to collect a loan. You filed a counterclaim
against her to recover a piece of land. Of course, she have to answer your counterclaim. But she
will say, Actually you have been molesting me with your claim when actually you have no right
over my land. So, nag-file siya ng injunction to stop you from molesting her. In other words,
based on your counter-claim against her to recover my land, she will file a counterclaim to stop
you from molesting her. In effect, there is counter-claim to a counter-claim.
COUNTER-CROSS-CLAIM. Nag cross-claim ka sa akin, mag cross-claim din ako sa iyo.

E.) REPLY
Sec. 10. Reply. A reply is a pleading, the office or function of which
is to deny, or allege facts in denial or avoidance of new matters alleged
by way of defense in the answer and thereby join or make issue as to
PLAINTIFF
1.
DEFENDANT
Complaint
2.
a.) Answer
b.) Counterclaim
3.
a.) Reply to answer

b.) Answer to counterclaim
4.
Reply to answer to counterclaim

such new matters. If a party does not file such reply, all the new
matters alleged in the answer are deemed controverted.
If the plaintiff wishes to interpose any claims arising out of the
new matters so alleged, such claims shall be set forth in an amended
or supplemental complaint.(11)
ILLUSTRATION: Plaintiff files a complaint against a defendant to collect an unpaid loan. D

files his answer and raises a new matter, affirmative defense. According to the defendant, the
obligation is already paid. Plaintiff said that you have paid the other loan. In other words, the
plaintiff would like to deny or dispute the defendants affirmative defense of payment.
Q:
A:
Can I file a pleading to dispute your defense?

Yes, that pleading is called a REPLY.
Q: How do you classify a reply?

A: It is a responsive pleading because it is the response of the plaintiff to the affirmative
defense raised in the defendants answer.
An answer is a response to the complaint and the reply is a response to the answer.
Q: Halimbawa, you would like to answer my reply, what pleading would you file?
A: None. That is the last pleading. Otherwise, walang katapusan and pleading natin. So,
reply is considered as the last pleading.
Q: Suppose I filed a complaint, you filed an answer invoking payment. I failed to reply. What
is the effect if the plaintiff fails to reply? Is he admitting the correctness of the defense?
dennisaranabriljdii
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A: No. The failure to file a reply has no effect. Section 10 says that if a party does file such
reply, all the new matters alleged in the answer are deemed controverted. Meaning, all the
affirmative defenses raised in the answers are automatically denied.
So, whether you file a reply or not, the defenses are deemed automatically disputed. The
filing of a reply is OPTIONAL.
A reply should not be confused with the answer to a counterclaim which is also filed by the
plaintiff.
Q: Give the distinctions between ANSWER TO COUNTER-CLAIM and REPLY.
A: The following:
1.) A REPLY is a response to the defenses interposed by the defendant in his
answer, whereas
An ANSWER TO A COUNTERCLAIM is a response to a cause of action by
the defendant against the plaintiff;
2.)
The filing of a REPLY is generally optional, whereas

The filing of an ANSWER TO A COUNTERCLAIM is generally mandatory
under Rule 11 because if the plaintiff fails to file an answer to the
counterclaim, he will be declared in default on the counterclaim.
OUTLINE OF FLOW OF PLEADINGS
F. THIRD (FOURTH, ETC.) PARTY COMPLAINT

Sec. 11. Third, (fourth, etc.) - party complaint. A third (fourth, etc.)
party complaint is a claim that a defending party may, with leave of
court, file against a person not a party to the action, called the third
(fourth, etc.) party defendant, for contribution, indemnity,
subrogation or any other relief, in respect of his opponent's claim.
(12a)
THIRD PARTY COMPLAINT is the procedure for bringing into a case a third person who is
not a party to the case.
So, plaintiff files a case against the defendant. Defendant believes that a stranger or
somebody else should be brought into the case and therefore files a motion in court that he be
allowed to file a third-party complaint against such person and therefore the defendant is called
third party plaintiff and that third person is a third-party defendant.
EXAMPLE : A plaintiff files a case against a defendant to collect a loan when there are two
debtors and one of them is compelled to pay everything so the defendant will drag into the
picture the co-debtor for contribution or indemnity. Well, you already learned if there are two of
them all he has to do is to file a cross-claim against his co-defendant. BUT since he is the only
one, the remedy is to avail of Section 11.
Take note that filing a third-party complaint is not a matter of right. THERE MUST BE
LEAVE OF COURT. So unlike counterclaim or cross-claim, you do not need any motion or leave of
court. Just file your answer to the counterclaim of cross-claim and that will do, but not a thirdparty complaint.
The purpose of third-party complaint is for contribution, indemnity, subrogation and other
relief in respect of his opponents claim.
That is why there is a close relationship between a cross-claim and a third-party complaint
because a cross-claim must also be arising out of the subject matter of the main action. A thirdparty complaint must be also related to the main action. It cannot be a cause of action which has
no relation to the main action.
EXAMPLE: The plaintiff files a case against the surety and the principal debtor, so both of
them are defendants, and the surety seeks reimbursement for whatever amount he may be
compelled to pay the plaintiff. What kind of pleading would he file against his co-defendant (the
principal debtor)? CROSS-CLAIM.
BUT if the plaintiff file a case ONLY against the surety, because anyway the principal debtor
is not an indispensable party and the surety would like to seek reimbursement from the person
who benefited from the loan, he cannot file a cross-claim against anybody because he is the lone
defendant. It is possible for him to just file an answer . If he loses and pays the plaintiff, then he
will file another case against the principal debtor for reimbursement.
But if he wants everything to be resolved in the same case, what kind pleading will he file?
He must resort a THIRD-PARTY COMPLAINT and implead the principal debtor.
The PURPOSE of a third-party complaint is for the third party plaintiff to ask the third party
defendant for:
1.) Contribution;
2.) Indemnity;
3.) Subrogation; or
4.) any other relief in respect to the opponents claim.
CONTRIBUTION:
Example #1: Two debtors borrowed P100,000 from Janis (creditor) and they shared the
money 50-50. When the debt fell due, the creditor filed a case against one of them. So, one of
them is being made to pay the P100,000. Not only his share but also his co-solidary debtor. So if
I am the one liable when actually my real liability is only 50,000. What will I do? I will file a third
party complaint against my co-debtor for contribution.
Example #2: If Andrew and Carlo are guilty of a quasi-delict and the injured party files an
action for damages against Andrew only, Andrew may file a third-party complaint against Carlo
for contribution, their liability being solidary (Article 2194, New Civil Code)
dennisaranabriljdii
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INDEMNIFICATION:
Example #1: Two people signed a promissory note in favor of the creditor. But actually the
entire amount went to you and none for me. When the note fell due, I was the one sued. So I will
file a third-party complaint against you for indemnity. You have to return to me every centavo
that I will pay the creditor.
Example #2: A surety sued for recovery of debt by the creditor may file a third-party
complaint against the principal debtor for indemnity. (Article 2047, New Civil Code)
SUBROGATION:
Subrogation - You step into the shoes of someone else. Your obligation is transferred to me.
EXAMPLE: Where a contract is leased by a lessee and he subleased the property to a third
person who is now occupying the property. In effect, the sub-lessee stepped into the shoes of the
original lessee. If the property is damaged and the lessor sues the lessee for damages to his
leased property, the lessee or sub-lessor can file a third-party complaint and have the sub-lessee
for subrogation because actually, you stepped into the shoes when you occupied the leased
property. (Articles 1651 and 1654, New Civil Code)
For ANY OTHER RELIEF IN RESPECT TO THE OPPONENTS CLAIM, very broad:
EXAMPLE: When I buy the property of Mr. Cruz and after a while, here comes Mr. Dee filing
a case against me to claim ownership of the land. But I bought it from Mr. Cruz who warranted
that he is the real owner. So I will now file third-party complaint against Mr. Cruz to enforce his
warranty warranty against eviction. (Article 1548, New Civil Code)
Take note that there is always a connection between the main complaint and the thirdparty complaint because the condition is contribution, indemnification, subrogation and any
other relief in respect to your opponents claim. There is always a relation between the third
party-complaint and the main complaint against you. Here is a bar question...
BAR QUESTION: Janis files a case against Nudj to recover an unpaid load. Now the reason is
that Carlo also owes Nudj. Nudj says, I cannot pay you because there is a person who has also
utang to me. What I will pay you depends on his payment to me. File agad si Nudj ng thirdparty complaint against Carlo. Is the third-party complaint proper?
A: NO. There is no connection between the main action and the 3rd-party complaint the
loan of Nudj to Janis and the loan of Andrew to Nudj. Walang connection. Anong pakialam ni
Janis sa utang ni Andrew kay Nudj? Not in respect to his opponents claim.
BAR QUESTION: How do you determine whether a 3rd-party complaint is proper or
improper? What are the tests to determine its propriety?
A: Case of
CAPAYAS vs. COURT OF FIRST INSTANCE
77 PHIL. 181
HELD: There are four (4) possible tests to determine the propriety of a thirdparty complaint. In order for it to be allowed, it must pass one of them. That is the
reason when you file it, you need the permission of the court to determine whether it
is proper or not and the original plaintiff may object to the propriety of the third-party
complaint.
There are the FOUR TESTS (any one will do):
1.
A third-party complaint is proper if it arises out of the same transaction on which

plaintiff is based;
EXAMPLE: A creditor sued only one solidary debtor. So you can file a
third-party complaint for contribution. Anyway, there is only one loan and
our liability arises out of the same promissory note
2.
A third-party complaint is proper if the third-partys complaint, although arising

out of another transaction, is connected with the plaintiffs claim.
EXAMPLE: The car owner is sued for culpa aquiliana for damages
arising from vehicular collision and he files a third-party complaint against
the insurance company for indemnity based on the contract of insurance. So
it is connected with plaintiffs claim, and that is precisely the purpose of my
insurance coverage.
3.
Third party defendant would be liable to the original plaintiff's claim. Although
the third party defendant's liability arises out of another transaction.
EXAMPLE: Sublease. Roy leased his property to Eric. Eric subleased it
to Rudolph. If Roys property is damaged, Roy will sue Eric. But Eric will
also sue Rudolph. The sub-lessor has the right to file a third-party
complaint against the sub-lessee for the damaged leased property which is
now occupied by the sub-lessee. The third-party defendant Rudolph would
be liable to plaintiffs (Roys) claim. Rudolph will be liable to Roy for Roys
claim against Eric although the liability of Rudolph arises out of another
transaction (Sub-lease contract)
4.
The third party defendant may assert any defense which the third party plaintiff
has or may have against plaintiffs claim.
EXAMPLE: Tato is a registered owner of a car and then sold it to Philip.
Philip is the actual owner. However, Philip did not register the sale to the
LTO. The registered owner is si Tato lang gihapon although he is no longer
the real owner. While Philip was driving that car it bumped the car of
Lewee Tanduay. Lewee researched the owner of the car at LTO and ang
lumabas ay si Tato. So ang ginawa ni Lewee, ang kinasuhan nya ay si Tato
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44
na walang malay...under the law, the registered owner is liable. Of course,

when Tato got the complaint, Wala akong alam sa sinasabi nyo, that car is
no longer mine. I sold that two years ago, I have no idea what happened.
So obviously, Tato arrived at the conclusion that si Philip and
nakabangga. Tato filed a third-party complaint against Philip because he is
the real owner. When Philip got the third-party complaint, and because he
knows the story, in fact he was the one driving, ang ginawa niya, nilabanan
niya ng diretso si Lewee. Meaning, instead of Tato fighting Lewee, Philip
fought Lewee directly. Frontal na ba. Sabi ni Philip, I was not at fault, you
(Lewee) are at fault. So here is a situation where Lewee sues Tato, Tato
sues Philip but Philip fights Lewee, as if he is the real defendant, then the
third party complaint must be proper. It must be related.
So those are the samples of third party complaint which are correct.
Take note that there is a close similarity between a third-party complaint and a cross-claim
because as we have learned, a cross-claim must also be related to the same action. So we will go
to some interesting case on third-party complaint.
SAMALA vs. VICTOR
170 SCRA 453
FACTS: This case involves a vehicular accident. Philip, while riding on a
passenger jeep owned by Tato, the jeep was bumped by the truck of Lewee,
injuring Philip. Philip filed a case for damages arising from breach of contract
against Tato. Tato filed a third-party complaint against Lewee. After trial, the
court found that Tato has not at fault. The fault is entirely against Lewee . So the
action against Tato was dismissed, but the court held that Lewee be directly
liable to Philip.
It was questioned by Lewee. Lewee claims that is should be Tato who is
liable to Philip because Philip did not sue me (Lewee), Bakit ako ang ma-liable
hindi naman ako ang dinemanda ni Philip? So procedurally, I am liable to Tato,
Tato is liable to Philip.
ISSUE #1: Can Lewee, a third-party defendant, be held liable directly to
Philip, the original plaintiff?
HELD: YES, that is possible. In a third-party complaint, normally Lewee is
liable to Tato. But Lewee can be made liable to Philip, or Lewee can be made
liable to both Philip and Tato because that is covered by the phrase OR ANY
OTHER RELIEF so broad that it cover a direct liability of a third party
defendant to the original plaintiff.
ISSUE #2: How can the court award damages to Philip based on the theory
of culpa aquiliana when his complaint is based on culpa contractual? Can Lewee
be held liable for culpa-contractual?
HELD: YES. That is also possible because the primary purpose of this rule
is to avoid circuitry of action and to dispose of in one litigation, the entire subject
matter arising from a particular set of fact it is immaterial that the third-party
plaintiff asserts a cause of action against the third party defendant on a theory
different from that asserted by the plaintiff against the defendant. It has likewise
been held that a defendant in a contract action may join as third-party
defendants those liable to him in tort for the plaintiffs claim against him or
directly to the plaintiff.
Another interesting case which is to be compared with the abovementioned case is the
1989 case of
SHAFER vs. JUDGE OF RTC OF OLONGAPO CITY
167 SCRA 386
NOTE: This case although it refers to third-party complaint is related to
criminal procedure. This is similar to the case of JAVIER where the issue is, is
there such a thing as a counterclaim in a criminal case where the offended party
did not make a reservation. In SHAFER, is there such a thing as a third-party
complaint in a criminal case?
FACTS: Shafer while driving his car covered by TPL, bumped another car
driven by T. T filed a criminal case against S for physical injuries arising from
reckless imprudence. T did not make any reservation to file a separate civil
action. So obviously, the claim for civil liability is deemed instituted.
Shafer was covered by the insurance, so he filed a third-party complaint
against the insurance company insofar as the civil liability is concerned. The
insurance company questioned the propriety of d third-party complaint in a
criminal case, because according to the insurance company, the third-party
complaint is entirely different from the criminal liability.
ISSUE: Whether or not the filing of a third-party complaint in a criminal
case is procedurally correct.
HELD: Yes, it is proper. There could be a third party complaint in a criminal
case because an offense causes two classes of injuries the SOCIAL and the
PERSONAL injury. In this case, the civil aspect of the criminal case is deemed
impliedly instituted in the criminal case. Shafer may raise all defenses available
to him in so far as the criminal and civil aspects are concerned. Shafers claim of
indemnity against the insurance company are also the claim by the victim in the
criminal claim. Therefore Shafers claim against the insurance company is related
to the criminal case. So similar to Javier that an accused may also file a
compulsory counterclaim in a criminal case when there is no reservation.
BUT in the light of the ruling in the case of
CABAERO vs. CANTOS, supra
The SHAFER ruling has to be set aside for the meantime because there is no
such thing as third-party complaint in criminal cases now. In other words, forget
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it in the meantime. Also, forget counterclaims in criminal cases even if they arose
out of the main action.
This case refers to JAVIER on whether or not there is such a thing as a
compulsory counterclaim in criminal cases. SC said, Huwag muna samok! If we
will allow it in criminal cases it will only complicate and confuse the case. The
attention might be divested to counterclaims or cross-claims or third-party
complaints, etc.
HELD: The trial court should confine itself to the criminal aspect and the
possible civil liability of the accused arising out of the crime. The counter-claim
(and cross-claim or third party complaint, if any) should be set aside or refused
cognizance without prejudice to their filing in separate proceedings at the proper
time.
We will go to the old case of
REPUBLIC vs. CENTRAL SURETY CO.
25 SCRA 641 [1968]
FACTS : Hannah filed a case against Rina for a liability amounting to
P300,000. So it was filed in RTC. Rina filed a third-party complaint against
ConCon Insurance Company for indemnity insurance but the maximum
insurance is only P50,000. The insurance company moved to dismiss on the
ground that the court has no jurisdiction because third-party complaint is only
for P50,000 which is supposed to be within the competence of the MTC.
ISSUE: Is the insurance company correct?
HELD: NO. The insurance company is wrong. The third-party complaint is
only incidental. The third-party complaint need not be within the jurisdiction of
the RTC where the principal action is pending because the third-party complaint
is really a continuation and an ancillary to the principal action. If the court
acquires jurisdiction over the main action, automatically, it acquires jurisdiction
over the third-party complain which is mainly a continuation of the principal
action.
Now, the same situation happened in another case. The case of
EASTER ASSURANCE vs. CUI
105 SCRA 642
FACTS : Carol is a resident of Davao City. Cathy is a resident of Cebu City.
Carol filed a case before the RTC of Davao City against Cathy. Cathy files a thirdparty complaint against Joy, a resident of Manila. Is the venue proper?
HELD: The venue is proper because the venue of the main action is proper.
So automatically third-party complaint is also proper. The third-party has to
yield to the jurisdiction and venue of the main action.
45
EXAMPLE:
B
A files a complaint
against B
B files a 3rd party

complaint against C
C files a 4th party

complaint against D
As car was bumped by B. But B contented that the reason that he bumped As car was
because he was bumped by C and the same goes to C, D, E. B then files a 3rd party complaint
against C. C files a 4th party complaint against D. D files a 5th party complaint against E. Meaning,
pasahan, ba. They will throw the liability to the one who did it. That is a good hypothetical
example of how a fourth, fifth, sixth party complaint can come into play.
Sec. 12. Bringing new parties. - When the presence of parties other
than those to the original action is required for the granting of
complete relief in the determination of a counterclaim or cross-claim,
the court shall order them to be brought in as defendants, if
jurisdiction over them can be obtained.
The best example of Section 12 is the case of:
SAPUGAY vs. COURT OF APPEALS
183 SCRA 464
FACTS: Mobil Philippines filed a case against Sapugay, its gasoline dealer.
Sapugay filed a answer and interposed a counterclaim for damages against Mobil
and included Cardenas (the manager of Mobil) who is not a plaintiff.
ISSUE: Whether or not the inclusion of Cardenas in the counterclaim is
proper where he is not a plaintiff in the Mobil case.
HELD: The inclusion of Cardenas is proper. The general rule that the
defendant cannot by a counterclaim bring into the action any claim against
persons other than the plaintiff, admits of an exception under this provision
(Section 12) meaning, if it is necessary to include a 3rd person in a
counterclaim or cross-claim, the court can order him to be brought in as
defendants. In effect, the bringing of Cardenas in the case is sanctioned by the
Rules.
The case of SAPUGAY should not be confused with the case of:
46
CHAVEZ vs. SANDIGANBAYAN

198 SCRA 282
Now of course, if theres such a thing as 3rd party complaint, there is also a 4th, 5th, 6th or
7th complaint. That is possible but everything is with respect to his opponents claim.
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FACTS: Petitioner Francisco Chavez (former solicitor general) represented

the government for PCGG. The case arose out of PCGG cases wherein Enrile was
sued for accumulation of his ill-gotten wealth. Enrile filed an answer to the
complaint. Enrile contends that the case is harassment suit whose mastermind
was the Solicitor General himself. Enrile files a counterclaim against Chavez.
D files a 5th party
(Enriles lawyer maybe well aware of the Sapugay case the one sued is the
complaint against
lawyer.)
E
Chavez questioned such counterclaim contending that he was not a
plaintiff. Sandiganbayan denied such contention.
HELD: The inclusion of plaintiffs lawyer is improper.
To allow a counterclaim against a lawyer who files a complaint for his
clients, who is merely their representative in court and not a plaintiff or
complainant in the case would lead to mischievous consequences. A lawyer owes
his client entire devotion to his genuine interest, warm zeal in the maintenance
and defense of his rights and the exertion of his utmost learning and ability. A
lawyer cannot properly attend to his duties towards his client if, in the same
case, he is kept busy defending himself.
Q: Is the SC suggesting that a lawyer who sued in a harassment case can get away with it?
Does that mean to say that the lawyer is immune from suit?
A: NO, the SC does not say a lawyer enjoys a special immunity from damage suits. However,
when he acts in the name of the client, he should not be sued in a counterclaim in the very same
case where he has filed only as a counsel and not as party. Only claims for alleged damages or
other causes of action should be filed in a separate case. Thus, if you feel that the lawyer is acting
maliciously, you file a complaint but in a separate case. Thats why the case of Sapugay should
not be confused with Chavez.
Sec. 13. Answer to third (fourth, etc.) party complaint. - A third
(fourth, etc.)-party defendant may allege in his answer his defenses,
counterclaims or cross-claims, including such defenses that the third
(fourth, etc.)-party plaintiff may have against the original plaintiff in
respect of the latter's claim against the third-party plaintiff. (n)
ILLUSTRATIONS:
A files a case against B
B files a 3rd party complaint against C
C
A vs. B; B vs. C. Normally, B will defend himself against the complaint of A and C will defend
himself in the complaint of B. That is supposed to be the pattern. Normally, C does not file a
direct claim against A. But the law allows C in defending himself, to answer the claim of A. The
law allows him to file a direct counterclaim against A.
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A third-party complaint involves an action separate and distinct from,

although related to, the main complaint. A third-party defendant who feels
aggrieved by some allegations in the main complaint should, aside from
answering the third-party complaint, also answer the main complaint.
If C has the right to frontally meet the action filed by A meaning, C will fight A directly if
C has the right to assert any defense which B has against A and even for C to litigate against A,
then it must be a proper third party complaint. That has happened several times.
Normally, Cyle answers the 3rd party complaint of Bugoy and does not answer to the
complaint of Aying. But according to SINGAPORE case, if Cyle feels aggrieved by the allegations of
Aying, he should also answer the main complaint of Aying. Practically, he shall answer the 3rd
party complaint and the main complaint.
EXAMPLE: B owns a car which was already sold to C. The trouble is that B never registered
the transaction. On the record, B is still the registered owner. Then C, while driving the car, meets
an accident and injures A. When A looked at the record, the owner is B. So A files a case against B.
So B will file a third party complaint against the real owner (C). Now, C can frontally meet the
complaint filed by A. That is the best example where you have the right against the original
plaintiff or even assert a counterclaim against him. As a matter of fact, that last test is now
incorporated as a new provision (Section 13).
PARTS OF A PLEADING
Rule 7
This is more on Legal Forms, a third year subject. That is a bar subject. That is the last
subject given on the fourth Sunday. The last subject in the bar is Legal Ethics and Practical
Exercises where an examinee will be asked to prepare pleadings like answer, complaint,
information.
In the case of:

SINGAPORE AIRLINES vs. COURT OF APPEALS
243 SCRA 143 [1995]
Sec. 1 Caption. The caption sets forth the name of the court. The
title of the action, and docket number if assigned.
The title of the action indicates the names of the parties. They
shall all be named in the original complaint or petition; but in
subsequent
FACTS: Aying filed a case against Bugoy. Bugoy filed a third party complaint
against and Cyle who wants to frontally meet the main complaint filed by Aying
HELD: If that is your purpose, you have to file two (2) answers you file an
answer to the third party complaint and you file a second answer to the main
complaint filed by Aying.
pleadings it shall be sufficient if the name of the first party on each side be started with an appropriate indication when there are other parties.
Their respective participation in the case shall be indicated.
ILLUSTRATION:
CAPTION
TITLE
Juan dela Cruz,

Plaintiff
47
Republic of the Philippines

11th Judicial Region
Regional Trial Court of Davao
Branch 12
Civil Case #12345
For: Annulment of Contract
-versusOsama bin Laden

Defendant COMPLAINT
Plaintiff, through counsel respectfully alleges that:
1. x x x x x x;
2. x x x x x x;
3. x x x x x x
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BODY
So, there must be a caption, title. Take note, the title of the action indicates the names of the parties. They shall all be named in the original complaint or petition; but in the subsequent pleadings, it
shall be sufficient if the name of the first party of each side be stated without the others. You only write the first name of plaintiff and defendant and followed by the word ET AL.
Q: Suppose there are 20 plaintiffs and 20 defendants in the concept of permissive joinder of parties. Now is it necessary that they shall be named?
A: In the complaint, YES. They shall all be named. It is possible that the title alone will reach 3 or more pages.
BUT in subsequent pleadings like the answer, reply, it is not necessary to write the name of everybody. What the law requires is to write the name of the first plaintiff followed by the term ET AL.
Example: Ms. Quitain, et al, plaintiffs vs. Ms. Pastor, et al, defendants.
So the rule is, it is only in the complaint where the name of all the parties are required to be stated, but in subsequent pleadings, no need. But there is an EXCEPTION to this rule. There are instances
where the law does not require the name of the parties to be stated even in the complaint.
Q: What are the instances where the law does not require the name of the parties to be stated even in the complaint?
A: These are the following:
1.) Subsequent Pleading (e.g. answer, reply, etc.) (Section 1);
2.) Class suit (Rule 3, Section 12);
3.) When the identity or name of the defendant is unknown (Rule 3, Section 14);
4.) When you sue an entity without judicial personality (Rule 3, Section 15);
5.) If a party is sued in his official capacity. Official designation is sufficient. [e.g. Mr. Acelar vs. City Mayor of Davao.] (Unabia vs. City Mayor, 99 Phil. 253)
Sec. 2. The body. - The body of the pleading sets forth its designation, the allegations of the party's claims or defenses, the relief prayed for, and the date of the
pleading. (n)
a) Paragraphs - the allegations in the body of a pleading shall be divided into paragraphs so numbered as to be readily identified, each of which shall contain a
statement of a single set of circumstances so far as that can be done with convenience. A paragraph may be referred to by its number in all succeeding pleadings. (3a)
(b) Headings - When two or more causes of action are joined, the statement of the first shall be prefaced by the words "First cause of action", of the second by "second
cause of action," and so on for the others.
(c) Relief - The pleading shall specify the relief sought, but it may add a general prayer for such further or other relief as may be deemed just or equitable. (3a, R6)
(d) Date - Every pleading shall be dated. (n)
In the body, you state your allegations or defenses. Then at the end, you state the relief which we call PRAYER what you are asking the court: Wherefore, it is respectfully prayed that judgment be
rendered ordering defendant to pay plaintiff his loan of P1 million with interest of 10% p.a. from this date until fully paid. Then, you end up with the date of the pleading: Davao City, Philippines, December 10,
1997.
A pleading is divided into paragraphs so numbered as to be readily identified. Normally, a complaint starts: Plaintiff, thru counsel, respectfully alleges that x x x. Then first paragraph, second
paragraph and so on. The first paragraph is normally the statement of the parties and their addresses which is required under Rule 6 where a complaint must state the names:
1.
2.
3.
Plaintiff Juan dela Cruz is of legal age, a resident of Davao City whereas defendant Pedro Bautista, is also of legal age and a resident of Davao City.
On such and such a date, defendant secured a loan from plaintiff in the amount of so much payable on this date.
The loan is now overdue but defendant still refused to pay.
So every paragraph is numbered so that it can easily be identified in the subsequent

pleadings. Pag-sagot ng Answer, he will just refer to the #, I admit the allegations in paragraph
#5)
Paragraph [b] is related to Rule 2 on joinder of causes of action. Can you file one complaint
embodying two or more causes of action? YES.
EXAMPLE: Angelo wants to file a case against Ina to collect three unpaid promissory notes.
So, there are three causes of action. The lawyer of Angelo decided to file only one complaint
collecting the three promissory notes. Now, how should he prepare the complaint containing the
three promissory notes?
Plaintiff respectfully alleges: 1. that he is of legal age x x x.
FIRST CAUSE OF ACTION: In 1995, there was a loan secured amounting to so
much and it is not paid until now;
SECOND CAUSE OF ACTION: In 1995, there was a second loanbecame
payable and is not paid.
THIRD CAUSE OF ACTION: x x x x.
In other words, hiwa-hiwalayin mo. You indicate your different causes of action. That is
how you prepare your complaint. On the other hand, the defendant will answer:
ANSWER:
ANSWER TO THE FIRST CAUSE OF ACTION x x x,
ANSWER TO THE SECOND CAUSE OF ACTION x x x,
ANSWER TO THE THIRD CAUSE OF ACTION x x x.
Do not combine them together in one paragraph. Even in trial when you present your
exhibits, you might get confused because you combined all the three causes of action in one
paragraph. But with this one, the presentation is clearer, the outline is clearer and it is more
scientifically arranged than joining them in one story.
Under paragraph [c], the pleading must state the relief sought. But it may add a general
prayer for such further other relief as may be just and equitable like yung mga pahabol na
Plaintiff prays for such further or other relief which the court may be deemed just or equitable.
Meaning, aside from the relief sought, Kung meron ka pang gustong ibigay, okay lang. That is the
general prayer.
Q: Is the prayer or relief part of the main action?
A: NO, it is part of the complaint or answer but it may indicate what is the nature of the
cause of action. Cause of actions are mere allegations. Prayer is not part of the action but it is
important because it might enlighten us on the nature of the cause of action. That is the purpose
of relief or prayer.
EXAMPLE : Angelo filed a case against Ina for annulment of a contract of sale. If you look at
the caption, it is a personal action which should be instituted in the place where the parties
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49
reside. But if you look at the prayer: Wherefore, it is respectfully prayed that after trial, the deed
of sale shall be annulled on the ground of intimidation, and the ownership of the land sold to the
defendant in Digos be ordered returned. Actually, you are trying to recover the ownership of the
land. So in other words, it is not a personal action but a real action.
Sec. 3. Signature and Address.- Every pleading must be designed by
the party or counsel representing him, stating in either case his
address which should not be a post office box.
xxxxx
Signature and address every pleading must be signed by the party or the counsel
representing him. Take note of the prohibition now: You must state your address which should
not be a post office box because one difficulty is that the exact date when you claim your mail
cannot be determined if it is a P.O. box. But if it is served to his office, the exact date can easily be
determined.
Before, I met a situation where the lawyer filed a motion or a pleading stating only his
telephone number. My golly! that is worse! How will I send my reply? Through telephone also?
(sa text kaya?)
IMPLIED CERTIFICATION IN A PLEADING

Section 3, second paragraph:
The signature of counsel constitutes a certificate by him that he
has read the pleading; that to the best to his knowledge, information,
and belief there is good ground to support it; and that it is not
interposed for delay.
Q: When a lawyer signs a pleading, what is he certifying?
A: Second paragraph says, he is certifying that he has read the pleading, that to the best of
his knowledge, information and belief, there is a good ground to support it, and it is not
interposed for delay. That is called as and IMPLIED CERTIFICATION IN A PLEADING (Arambulo
vs. Perez, 78 Phil. 387). That was already asked in the bar once.
BAR QUESTION: What is the meaning of the phrase Implied Certification in a Pleading?
A: Implied Certification in a Pleading means that when a lawyer signs a pleading he is
certifying that he has read it, to the best of his knowledge, information and belief there is a good
ground to support it, and it is not interposed for delay.
Section 3, last paragraph:
An unsigned pleading produces no legal effect. However, the
court may, in its discretion, allow such deficiency to be remedied if it
shall appear that the same was due to mere inadvertence and not
intended for delay. Counsel who deliberately files an unsigned

pleading, or signs a pleading in violation of his Rule, or alleges
scandalous or indecent matter therein, or fails to promptly report to
the court a change of his address, shall be subject to appropriate
disciplinary action. (5a)
filed.
So, when a pleading is not signed it produces no legal effect. It is as if no pleading has been
Q: Now, suppose it was just an inadvertent omission, it was not intentional maybe because
he was hurrying to file the pleading, the lawyer had it filed when actually he has not signed it yet.
A: Well, actually if that is in good faith, the court may forgive the counsel because the law
says, however, the court, may in its discretion, allow such deficiency to be remedied if it shall
appear that the same was due to mere inadvertence and not intended for delay. Maybe, alright,
you sign it now in order that it will produce a legal effect.
However, if the lawyer files a pleading which is UNSIGNED DELIBERATELY, sinadya, then,
according to the rules, he shall be subject to appropriate disciplinary action. That is practically
unethical no? Not only that, he is also subject to disciplinary action if he signs a pleading in
violation of this Rule or alleges scandalous or indecent matter therein, or fails to promptly report
to the court a change of his address. These are the grounds no.
Now, this ground fails to promptly report to the court a change of his address has been
inserted in 1997 Rules, this was not found in the prior Rules. Siguro, the SC has discovered that
this has been the cause of delay in litigation.
Q: What do you mean by this?
A: A lawyer will file a pleading in court, he will say this is his address, and then he moves his
office without telling the court or the opposing counsel of his new address. So, the court will be
sending notices and orders to his old address and it is returned to sender because the lawyer
already moved to another place. So, it causes delay ba.
So, in order to penalize the lawyer, subject to disciplinary action, it is his obligation to
inform the court and even the opposing counsel about his new address so that all court orders,
decisions and all pleadings will be served on his address. I think what prompted the SC to insert
this is the fact that it has been the cause of delays in many cases.
VERIFICATION
Sec. 4. Verification.- Except when otherwise specifically required
by law or rule, pleadings need not be under oath, verified or
accompanied by affidavit. (5)
A pleading is verified by an affidavit that the affiant has read the
pleading and that the allegations therein are true and correct of his
knowledge and belief.
A pleading required to be verified which contains a verification
based on "information and belief," or upon "knowledge, information
dennisaranabriljdii
50
and belief," or lacks a proper verification, shall be treated as an

unsigned pleading. (6a)
Q: What do you understand by verification in a pleading?
A: It means that there is an affidavit accompanying the pleading that the pleader will certify
that he prepared the pleading, that all allegations therein are true and correct. For example: In
the pleading the plaintiff will say:
I, Juan de la Cruz of legal age, after being sworn in
accordance with law, hereby say that:
I am the plaintiff in the above entitled case.
I caused the preparation of this complaint;
I read the allegations therein;
And they are true and correct of my own knowledge.
Signed
Affiant
Subscribed and sworn to before me on this 2nd day of
October 2001, in the City of Davao, Philippines.
Panfil
o Corpuz
Notary Public
That is what you call verification of a pleading. That the pleader, whether plaintiff or
defendant, will attest that the allegations in his complaint or in his answer are true and correct of
his own knowledge. And then, he will sign it, and then below that, there will be the so-called
JURAT - Subscribed and sworn to before me on this ___ day of December 1997, in the City of
Davao, Philippines. Then, signed by the notary public. Meaning, statements, in the pleading are
confirmed to be correct, under oath, by the defendant. That is called, the verification of a
pleading.
The purpose of verification is to insure good faith in the averments of a pleading. Although
lack of verification in a pleading is a formal defect, not jurisdictional defect, and can be cured by
amendment. (Phil. Bank of Commerce vs. Macadaeg, L-14174, Oct. 31, 1960)
Q: What do you think will happen if a pleading is verified by a party and it turns out that the
allegations are false? And that he deliberately made those allegations false and under oath.
A: Well, you know your Criminal Law. That will be a ground for the prosecution for the
crime of perjury, because that is a false affidavit. But if the pleading is not verified, even if they
are false, there is no perjury, because perjury requires a sworn statement by the accused.
Q: How is a pleading verified?
A: The law says, a pleading is verified by affidavit, that the affiant has read the pleading and
that the allegations therein are, true and correct of his knowledge and belief.
Q: Suppose I will say, the allegations there are true and correct based on my information
and belief.
A: According to the paragraph 3, verification is not sufficient, because you can always claim
na Ganoon pala, hindi pala totoo. Sorry ha? That is my information eh. Meron kang lusot ba. So,
you must say they are true and correct based on my own knowledge. Information will not
suffice.
Under the prior rule, a proper verification must be based on knowledge the allegations
therein are true and correct of my own knowledge. Now, knowledge and belief, and yet the third
paragraph says, based on knowledge, information and belief is bawal. So, knowledge,
information and belief is improper, but knowledge and belief only is proper. So tanggalin mo
lang yung information to make it proper.
Q: What happens if a pleading is not verified when the law requires it to be verified? Is that
a fatal defect?
A: The pleading is defective but it is only a formal defect. The court still has jurisdiction
over the case. If the defect is formal, it can be cured by amending the pleading and verifying. So, it
is a defective pleading but the defect is formal, it is not substantial or jurisdictional. Therefore,
the case should not be dismissed. The pleading can be amended to include verification.
Q: Does the law require every pleading to be verified?
A: NO. The GENERAL RULE is, pleadings need not be under oath, EXCEPT when otherwise
specifically required by law or this rule. When the law or rules require a pleading to be verified,
then it must be verified, otherwise it is formally detective. If the law is silent, verification is not
necessary and the pleading is filed properly.
Now, if you ask me, what are the pleadings which the law or the Rules of Court require to be
verified, there are many. They are scattered throughout the Rules and we will meet some in the
course of going over the Rules. I think that question has already been asked 3 times in the BAR.
The last time was in 1995. Meaning, the examiner was asking for the exceptions. You cannot find
one rule or one section where you will get all the answers in that section because they are
scattered, sabog eh. So, practically, it requires the Bar candidate to have a grasp of the entire
Rules so that he will be able to recall as many pleadings as there are, which require. From time to
time we will go on, we will meet them.
BAR QUESTION: Name as many pleadings as you can which must be verified.
A: The following: (taken from the 4th year Remedial Law transcription)
1.) Rule 8 when you deny the due execution of an actionable document;
2.) Summary Rules all pleadings under summary rules should be verified;
3.) Special Civil Actions petitions for certiorari, prohibition and mandamus.
I remember that years ago, there was a student who asked me this question:
Q: Now, on the other hand, suppose a pleading does not require verification but the lawyer
had it verified. What is the effect?
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A: There is no effect, just surplusage! A pleading in general is not required to be verified.

But I will verify it. Is there something wrong with it? Technically, none. But if it is required to be
verified and you omit the verification, it is formally defective.
So he said, In other words Sir, it is better pala that you will verify every pleading para
sigurado. No harm man kaya? At least, even if there is a verification, when it is not required, no
harm. Thats true, no harm but if a lawyer does that, that only shows he does not know the rules.
He cannot identify which pleading requires to be verified because he will automatically verify
everything.
And the second effect, if a pleading is not verified, and the statement is false, there is no
perjury. Now I verify it, and it turns out to be deliberately false, you are courting a criminal
prosecution for your client for perjury. In other words, you create a crime of perjury when
actually there should be none in the first place. The policy may be playing it safe but it produces
other effects. Ignorance of the rules!
CERTIFICATION OF NON-FORUM SHOPPING
Sec. 5. Certification against forum shopping.-- The plaintiff or the
principal party shall certify under oath in the complaint or other
initiatory pleading asserting a claim for relief, or in a sworn
certification annexed thereto and simultaneously filed therewith:
a)that he has not theretofore commence any action or filed any
claim involving the same issues in any court, tribunal or quasi-judicial
agency and, to the best of his knowledge, no such other action or claim
is pending therein;
b)if there is such other pending action or claim, a complete
statement of the status thereof; and
c)if he should thereafter learn that the same or similar action or
claim has been filed or pending, he shall report that fact within (5)
days therefrom the court wherein his aforesaid complaint or
initiatory pleading has been filed.
Failure to comply with the foregoing requirements shall not be
curable by mere amendment of the complaint or other initiatory
pleading but shall be cause for the dismissal of the case without
prejudice, unless otherwise provided, upon motion and after hearing.
The submission of a false certification or non-compliance with any of
the undertakings therein, shall constitute indirect contempt of court,
without the prejudice to the corresponding administrative and
criminal actions. If the acts of the party or his counsel clearly
constitute willful and deliberate forum shopping, the same shall be
ground for summary dismissal with prejudice and shall constitute
direct contempt, as well as a cause for administrative sanctions. (n)
You know what is forum shopping? I think you have an idea about that, no? Forum
Shopping is an unethical practice when a lawyer or a party files identical cases in two or more
tribunals hoping that if he may fail in one case, he will succeed in another forum. Now, maybe
this practice has become rampant before, not so much in Davao City but maybe in Metro Manila
because most of the abuses in the bar happen in Metro Manila not in the provinces.
Maybe because of these abuses, the SC has decided to put down this provision in order to
assure good faith. So everytime you file a complaint you must certify under oath that you have
not filed any other case of this nature in any other court. More or less, you will follow the
language found in the first paragraph. And this requirement was originally found in a Circular
04-94 of the SC. It is now incorporated in the new rules in Section 5.
Q: What is the effect if a complaint or a third-party complaint is filed in court without the
certification on non-forum shopping?
A: That is a ground by itself for an automatic dismissal of the complaint.
Now take note that the certification of non-forum Shopping is not only required in the
complaint but the law says: Complaint or other initiatory pleadings such as counterclaims,
cross-claims, third-party complaints. Therefore, all these pleadings require certification against
forum shopping.
Now lets go to the second paragraph.
Again, what is the possibility if the complaint is filed without the certification against forum
shopping? That is a ground by itself for the dismissal of the complaint.
Q: Now, suppose I will amend the complaint because at first there was no certification of
non-forum shopping, therefore, automatically the defect is cured. Now, is it automatic?
A: Look at the 2nd paragraph, it says, failure to comply with the foregoing requirements
shall not be curable by mere amendment of the complaint or other initiatory pleading, but shall
be cause for the dismissal of the case without prejudice. Meaning, you can still re-file the case
with the inclusion of the certification against forum shopping. Pwede mong ulitin, you re-file the
same complaint. That is the meaning of without prejudice.
Unless otherwise provided, upon the motion after hearing meaning, it is now
discretionary on the court to determine whether to dismiss or not to dismiss. Of course, it is a
ground for dismissal, but the court may say, Okay, we will just amend it. We will not dismiss.
But definitely, you cannot insist that because I already amended, everything is cured. That is for
the court to determine whether to dismiss or not to dismiss. So, mere amendment does not cure
automatically the missing certification.
I think this provision that mere amendment does not cure automatically the missing
certification for non-forum shopping was taken by the SC from its ruling in the 1995 case of
KAVINTA vs. CASTILLO, JR.
249 SCRA 604
HELD: The mere submission of a certification under Administrative
Circular No. 04-94 after the filing of a motion to dismiss on the ground of noncompliance thereof does not ipso facto operate as a substantial compliance;
otherwise the Circular would lose its value or efficacy.
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As a matter of fact, if the certification is deliberately false there are many other sanctions
contempt, possible administrative actions against the lawyer or criminal case for perjury.
Now, in permissive counterclaims, there must be a certification of non-forum shopping,
otherwise the case will be dismissed. Some lawyers argue that the certification is not required in
compulsory counterclaims. It is only required in permissive counterclaims because in
permissive counterclaims, the claimant has two choices: (1.) to file a counterclaim in the same
case, or (2.) to file a separate case. Another view is that, since Section 5 does not distinguish, we
should not distinguish.
However, that issue is now resolved in the 1998 case of
SANTO TOMAS UNIVERSITY HOSPITAL vs. SURLA
294 SCRA 382 [Aug. 17, 1998]
HELD: The certification of non-forum shopping applies only to permissive
counterclaims because there is no possibility of forum shopping in compulsory
counterclaims.
The proviso in the second paragraph of Section 5, Rule 7, of the 1997 Rules
of Civil Procedure, i.e., that the violation of the anti-forum shopping rule shall
not be curable by mere amendment . . . but shall be cause for the dismissal of the
case without prejudice, being predicated on the applicability of the need for a
certification against forum shopping, obviously does not include a claim which
cannot be independently set up.
Rule 8
MANNER OF MAKING ALLEGATIONS IN PLEADINGS
Sec. 1 In general Every pleading shall contain in a methodical
and logical form, a plain, concise and direct statement of the ultimate
facts on which the party pleading relies for his claim or defense, as the
case may be, omitting the statement of mere evidentiary facts.
If a defense relied on is based on law, the pertinent provisions
thereof and their applicability to him shall be clearly and concisely
stated.
In so far as pleadings are concerned, it must only state the ultimate facts where you relied
your defense or complaint. You must omit the statement of mere evidentiary facts. The basic
question here is, what do you mean by ultimate facts? What are evidentiary facts? Distinguish
ultimate facts from evidentiary facts.
ULTIMATE FACTS vs. EVIDENTIARY FACTS
Q: What are ultimate facts?
A: Ultimate facts are those which is are essential to ones cause of action or defense.
Q: How do you determine whether a fact is essential to your cause of action or defense?
A: The test to determine whether the fact is essential to your cause of action is: if the
statement in the pleading cannot be deleted. Because if you delete it, the statement of your cause
of action or defense become incomplete, a certain element of cause of action disappears then it
must be a statement of ultimate fact. Pagtinanggal mo, wala ka ng cause of action. But if you
delete it and there is still a cause of action, then it is not an ultimate fact.
Q: What are the essential elements of a cause of action?
A: The following:
1.) Statement of the right;
2.) Statement of the obligation;
3.) Statement of the violation; and
4.) Statement of damage.
You analyze a complaint from the first to the last paragraph, you find out whether the four
are present. Now, for example a complaint has 20 paragraphs. Yan bang 20 paragraphs,
importante ba lahat? We will shorten it by analyzing sentence by sentence. I will remove
paragraph #2. Are the elements of the cause of action still present out of the remaining
paragraph? If the answer is yes, then, paragraph #2 is not a statement of ultimate fact. We will
remove paragraph #5, the story is still complete, there is still a cause of action, then, the
paragraph or the statement that you removed is not a statement of ultimate facts. Suppose I will
remove paragraph #7, kulang na man, the allegation of the violation of the right is no longer
present, then, the paragraph #7 cannot be deleted, otherwise, if you delete it the statement or
the story or the cause of action disappear. Then, that is an ultimate fact.
So if the statement can be deleted and the cause of action is still complete, then it is not a
statement of ultimate fact. It is only a statement of evidentiary fact.
Q: What are evidentiary facts?
A: Evidentiary facts are the facts which will prove the ultimate facts. They should not be
stated in the pleading. They should be brought out during the trial. They are proper during the
trial but they have no place in your pleading.
In the law on Evidence, ultimate facts are called facturn probandum as distinguished from
factum probans (evidentiary facts).
EXAMPLE: In a land dispute, the question is: Who has been in possession of the land
for a long time? I claim Im the one. So, I will say, plaintiff has been in possession of this land
continuously for the past 30 years. That is a statement of ultimate fact because that shows
your right your right over the property that you cannot be driven out. Thirty years na
gud iyan.
Suppose the lawyer wants to impress the court that the statement is true, the pleading
describing continues possession for the past 30 years from 1967 to 1997. And therefore, the
lawyer will now prepare the complaint in this manner:
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Plaintiff has been in possession of the said property continuously,

openly for the past 30 years from 1967 to 1997 as may be born out by the
following:
He entered the property in 1967. He cleared the property by cutting
the grass. In 1968, he planted 20 coconut trees. In 1969, he planted 50
coconut trees. In 1970, he planted mango trees. In 1971, he planted guava.
He will recite everything from 1967 to 1997.
That will really prove that he have been there for the past 30 years because continuous eh, every year you are reciting your activities including the taxes that you paid, the receipt, yan o,
eto and resibo ko! Now, if a lawyer will do that, his complaint will reach 100 pages. Do you know
why? Because he violated Section 1. He did not only state the ultimate facts but he also stated the
evidentiary facts. So, what should be the correct pattern? Complaint:
Plaintiff has been in continuous possession of the property for 30
years from 1967 up to the present.
That is the ultimate fact. You do not have to recite exactly what you did because that is what
I intend to prove. Now, of course, during the trial, how can I convince the court that I have been
in possession of the property for 30 years? Kailangan you have to convince, di ba? Then, during
the trial, you present the plaintiff and you ask the plaintiff: Mr. Plaintiff, when did you occupy the
property? 1967 When you first occupied the property, describe it. Ah, bagnot! I have to
clean it. So I clean it in 1967. In 1968, were you still there? Oh yes! What did you do in
1968? I planted coconut trees. Did you pay taxes in 1968? Yes! Wheres the receipt?
Eto o!
Yaan! From 1967, isa-isahin mo yan. Doon na tayo mag-istorya sa court. The evidentiary
facts should be brought out in court not in the pleadings, otherwise your pleading become
kilometric. That is what is meant by the phrase that you only state the ultimate facts omitting the
statement of evidentiary facts.
Another Example:
Collection case. Sabihin mo: The defendant borrowed money and then it
fell due. I made demands for him to pay, but despite repeated demands he
refused to pay.
Tama na iyon. You do not have to state in your complaint that when the account fell due last
November 5, I called him up by telephone. He promised to pay in November 7 and called him again
and he promised to pay tomorrow Hindi na kailangang sabihin mo iyan! Those are evidentiary
facts. But during the trial, you can narrate that I have been writing, eto o, andami kong sulat, I
have been calling him by telephone but he kept on promising. So, mag-istorya ka na ng detail sa
husgado. Those are what you call evidentiary facts. But in your complaint you do not have to
recite all those.
Under Section 1, you state the ultimate facts on which you rely your claim or defense. How
do you state the facts? Section 1 says that statement of ultimate facts must be stated in a
methodical and logical form and you must use plain, concise and direct statements or language.
The simpler the language, the better. A pleading is not a vehicle for you to show your mastery of
the English language.

language.
The judge might throw away your complaint for not using simple
I was reading an article about the use of plain, concise and direct language. I rememberDo not use this word, rather use this word. For example, do not use the word conflagration, use
fire. The latter is simpler.
How do you present the facts? Methodical and logical form. It is a matter of writing style.
Every person has his style of writing. Corollary, every person expects you to write in a
methodical or logical form. We have said earlier that a pleading actually tells a story. Plaintiff
tells the court his story. Defendant tells his story, too. How will the court understand your story?
Your presentation must be methodical and logical.
Writing style is a gift, no? Some people tell their story clearly, others dont understand.
Sasabihin mo, sabog ka mag-storya. Ang labo mo! It is not methodical and logical. Courts expect
lawyers to present case in a methodical and logical form.
What is the first test whether you style is methodical or logical? The best exercise is your
own answer in examinations. In a problem, you answer and you try to argue why. You try to
present your answer in a clear manner. It must be methodical and logical.
In your examinations, you may wonder why you got a different score with your classmates
where in fact the substance of your answers is the same. Precisely because the presentation of
the answer also matters. Siya 80, ikaw 75. Tingnan mo ang kanyang presentation, mas maganda.
To know the answer is not enough, you must know HOW to answer. Especially in the Bar exams
where the corrector is correcting more than 4,000 notebooks, your notebook must project itself
as if your notebook is telling the corrector: Read me! Read me!! That is the formula to pass law
school and the Bar.
PRINCIPLE: Only ultimate facts should be alleged and not the evidentiary facts.
Q: Apart from evidentiary facts, what are the other matters that should not be stated in the
pleading?
A: The following:
1.) Facts which are presumed by law;
2.) Conclusions of fact or law;
3.) Matters which are in the domain of judicial notice need not be alleged.
FACTS WHICH ARE PRESUMED BY LAW
Presumptions under the law need not be alleged in a pleading. When a fact is already
presumed by law, there is no need to make that allegation because your cause of action would
still be complete.
Example:
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Q: In a case of breach of contract against an operator of the common carrier. Do you think it
is necessary for the plaintiff to allege that the driver acted negligently? Is an allegation that the
driver of the carrier acted with negligence required?
A: NOT required. There must be negligence, otherwise, there would be no cause of action.
However there is no need to allege it in the complaint because under the Civil Code, whenever
there is a breach of contract of carriage, there is a presumption of negligence on the part of
carrier. It is not for the passenger to prove that the common carrier is negligent. It is for the
common carrier to prove that it is not negligent.
HOWEVER, In culpa aquilana, or quasi-delict, where there is no pre-existing contract
between the parties, the liability of the defendant hinges on negligence. There must be allegation
of negligence. The defendant must be alleged to have acted negligently to hold him liable.
Otherwise, there is no cause of action. It becomes an ultimate fact which should be alleged in the
pleading.
CONCLUSIONS OF FACT OR LAW

Conclusions of law or conclusions of fact must not be stated in the pleading. A statement of
fact is different from a conclusion of fact or law. For EXAMPLE, where plaintiff said that he is
entitled to moral damages or attorneys fees. That is not a statement of fact but your conclusion.
Statement of fact is to cite the basis why you are entitled you must state the reason why
you are entitled. The statement of the ultimate fact as distinguished from conclusion was the old
case of
MATHAY vs. CONSOLIDATED BANK
58 SCRA 559
HELD: A bare allegation that one is entitled to something is an allegation of
a conclusion. Such allegation adds nothing to the pleading, it being necessary to
plead specifically the facts upon which such conclusion is founded.
You must plead the facts upon which your conclusion is founded. To say that you are
entitled to something is not actually a statement of fact but merely a conclusion of the pleader. It
adds nothing to the pleading.
For EXAMPLE: The complaint alleges that the defendants are holding the plaintiffs
property in Trust for the plaintiff. Trustee ba you are holding the properties in trust for me
without any explanation of the facts from which the court could conclude whether there is a trust
or not. The SC in the case of MATHAY said that that statement is merely a conclusion of the
plaintiff. You must state the basis of your statement that they are holding your property in trust.
Frankly speaking, there are numerous complaints which are convincing but upon reading
them thoroughly, you will realize that majority of the statements are not statements of facts but
conclusions of law. Tatanggalin yung conclusion. It is bad complaint when you say that you are
entitled to this without stating your basis.
So statement of law is not allowed although there is an exception under the second
paragraph of Section 1 which says that if a defense relied on is based on law, the pertinent
provisions thereof and their applicability to him shall be clearly and concisely stated. At least now
you can quote the law. Sometimes a defendant when he files his answer, his answer is purely
based on law. He must cite the legal provision in his answer and explain WHY is it applicable to
him.
ALLEGATION OF ALTERNATIVE CAUSES OF ACTION OR DEFENSES

Sec. 2.
Alternative causes of action or defenses. - A party may
set forth two or more statements of a claim or defense alternatively or
hypothetically, either in one cause of action or defense or in separate
causes of action or defenses. When two or more statements are made
in the alternative and one of them if made independently would be
sufficient, the pleading is not made insufficient by the insufficiency of
one or more of the alternative statements. (2)
Q: May a plaintiff in his complaint state two or more claims alternatively or hypothetically?
A: Yes.
Q: What happens if one cause of action is insufficient? Will it cause the dismissal of the
complaint?
A: No, the complaint will remain insofar as the sufficient cause of action is stated. The
insufficiency of one will not affect the entire pleading if the other cause of action is insufficient.
EXAMPLE:
I read a case about passenger who was about to board a bus. Of course when
you are a passenger and you get hurt, that is culpa contractual. If you are not a
passenger and you get hurt due to the negligence of the driver, that is culpa
aquiliana. So it depends whether there is a contract of carriage or none.
In that case, the passenger was about to board a bus. As a matter of fact, the
left foot had already stepped on the bus. The bus suddenly sped up. He fell. He was
not able to ride because umandar man bigla. He was injured. What is the basis
against the carrier? Is there a contract or none? There is! Nandoon na nga ang
kaliwang paa, eh. Sabi ng iba, wala pang contract. Well, may mga kaso talaga na
malabo. You dont really know whether your cause of action is culpa contractual or
culpa aquiliana. You want to claim damages but you are not sure whether your case
is based on culpa contractual or culpa aquiliana. Its either one of the two. It
sometimes happens.
Now, if I am the lawyer for the plaintiff and I am tortured to make my choice, I may allege 2
possible alternative causes of action. I will draft the complaint in such a way that I will show to
the court that my cause of action is either culpa contractual or culpa aquilana. I will make sure
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that both allegations are covered. You cannot be wrong because the law does not require you to
make a choice.
Q: You are the defendant. You are confronted with the same problem. There is a complaint
against you and you have 3 possible defenses. Am I obliged to make a choice immediately?
A: NO. The law allows the defendant to cite the 3 possible defenses alternatively. Meaning,
each is my defense or not.
Suppose your defenses are inconsistent, takot ka. There is a lawyer I met na takot maging
inconsistent. I told him to look at Section 2, Rule 8 very well. The law allows defendant to plead
his defenses hypothetically or alternatively. He asked, what if they are inconsistent with each
other? I said, you look at SC decisions. The SC said a party may plead 2 or more causes of action
or 2 or more defenses alternatively. They may be inconsistent with each other but what is
important is each defense is consistent in itself. Meaning, each defense, when taken alone, is a
good defense. You look at them separately. Do not compare them.
For EXAMPLE:
Plaintiff files a case against a defendant to collect an unpaid loan. The basic
allegation is that the defendant obtained a sum of money by way of loan and
never paid it. Here is defendants answer:
a.)
b.)
c.)
That is not true. I never borrowed any money from the plaintiff.
That is a defense of denial.
Assuming that I received money from the plaintiff, that money was
not a loan but plaintiffs birthday gift to me. In other words, it was a
donation.
Assuming that the money I received from the plaintiff was really a
loan. However, such amount was completely paid. Defense of
payment.
So, I have 3 defenses. How can you reconcile these 3 defenses? They are inconsistent with
each other but it should not be taken against the defendant. What is important is that each
defense is consistent in itself. Look at them separately. That is also called a SHOTGUN
ANSWER. Sabog ba! In all directions.
However, during that trial, you have to choose among them which you think is true based
on evidence. The problem is that you choose one but it turned out that a different defense would
be correct. Hindi mo na magamit. There is a prejudice because during the trial, I will choose
among them with the evidence I have. Anyway, pleading man lang yon. I can abandon the
others. And that is even better because you might confuse the plaintiff of what really is your
defense. Thus, a lawyer should not be afraid to hypothetically or alternatively plead defenses
which are inconsistent with each other.
That is perfectly allowed as it is alternative and during trial the pleader may show the best
one rather than not stating it in the pleading and during the trial you waive the best defense
because according to the next rule, Rule 9, defenses or objections not pleaded in the answer are
deemed waived.
Take note that you have to correlate this topic on the related provisions we have already
taken up: For EXAMPLE:
1.)
2.)
3.)
Rule 2, Section 5 where a party may, in one pleading state in the alternative or
otherwise, as many causes of action;
Rule 3, Section 6 on permissive joinder of parties. When may 2 persons or more be
joined as plaintiffs or defendants and how are they joined? They are joined
jointly, severally, or alternatively; and
Rule 3, Section 13 on alternative defendants. When you are uncertain who is the
real defendant, you may join them alternatively although the relief against one
may be inconsistent with the other.
Remember this provisions because they are interrelated. Thus, when you study the Rules,
dont limit yourself to a particular provision. Look for other related provisions so you may see
the entire picture. Thats called co-relation You dont only see the tree but the entire forest.
This is very helpful in the bar exam.
HOW ALLEGATIONS IN A PLEADING ARE MADE
Q: How do you make allegations or averments in a pleading? Can you do it in a general
manner or do you need to be specific? How do you allege your ultimate facts? Is it in particular
or general terms?
A: It depends on what matters you are alleging in your complaint whether is a condition
precedent, capacity to sue or be sued, fraud, mistake, malice, judgment, or official document or
act.
ALLEGATION OF A CONDITION PRECEDENT
Sec. 3. Conditions Precedent. - In any pleading, a general averment
of the performance or occurrence of all conditions precedent shall be
sufficient. (3)
Sometimes in a pleading, you have to allege that the conditions precedent have already
been complied with. Can you still remember, one of the elements of a right of action is that
before you can go to court, you must comply with all the conditions precedent?
Q: When you allege compliance with the conditions precedent, is it necessary for you to be
specific what are those conditions precedent?
A: NO. Section 3 says that in every pleading, a general averment for the performance of all
conditions precedent shall be sufficient. A general allegation will suffice.
For EXAMPLE, in Administrative Law, you have the doctrine of exhaustion of
administrative remedies. Where a law provide for the exhaustion of administrative
remedies, court should not entertain cases without complying said remedies first. If the rule
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on exhaustion of administrative remedies is violated, do you think your case will prosper?
NO, it will not.
Specific EXAMPLE: You started with a quarrel over a parcel of land where you applied
for homestead. May kalaban ka. Where will you file first? Bureau of Lands. You may then
appeal to the Secretary of Agriculture. From the Secretary of Agriculture, you may go to the
Office of the Presidential who can reverse the decision of the secretary. Now, talo ka pa rin
but you believe there is a good ground to reverse the decisions in the executive department,
you can now go to the court. That is called the doctrine of judicial review of administrative
decision. Yan!
Definitely, from the Bureau of Lands, you cannot directly go to the court because you have
not yet complied with conditions precedent before filing the case. And the condition precedent is
that you must comply with the rule on exhaustion of administrative remedies.
Q: Now, suppose I have already complied with all these remedies. I will then go to court.
Definitely, I will allege that I have already exhausted remedies in the executive level. Is that
allegation sufficient? I have already exhausted my remedies in the administrative level. Do I
have to emphasize - I started with the Bureau of Lands. From there, I went to Department of
Agriculture. From there, I went to the Office of the President?
A: According to Section 3, a general averment will be sufficient. You need not specifically
allege compliance of conditions precedent. Therefore, an averment of the performance or
occurrence of all conditions precedent may be made generally and it shall be sufficient.
ALLEGATION OF CAPACITY TO SUE OR BE SUED
Sec. 4. Capacity - Facts showing the capacity of a party to sue or to
be sued or the authority of a party to sue or to be sued in a
representative capacity or the legal existence of an organized
association of persons that is made a party, must be averred. A party
desiring to raise an issue as to the legal existence of any party or the
capacity of any party to sue or be sued in a representative capacity,
shall do so by specific denial, which shall include such supporting
particulars as are peculiarly within the pleader's knowledge. (4)
When you file a case against somebody you must have capacity to sue and defendant must
have capacity to be sued.
Q: Is it necessary for me to say that plaintiff has capacity to sue? And the defendant has
capacity to be sued?
A: YES because Section 4 says you must show capacity to sue and be sued. It means that
capacity to sue and be sued must be averred with particularity. A general statement of it is not
sufficient. As a matter of fact, that is the first paragraph of a complaint: Plaintiff, Juan dela Cruz,
of legal age, single, a resident of Davao City There is no presumption of capacity or incapacity
to sue.
You may say, I am suing as guardian of the plaintiff. That is a representative party to sue
and be sued in a representative capacity. Can you say, I am suing as a guardian? NO. Neither
can you say, I am appointed as the guardian.
Q: How should it be done?
A: I am the courts appointed guardian of the plaintiff minor having been afforded guardian
by the court in this case based on an order. You have to emphasize that the court appointed
you.
Section 4 says, the legal existence of an organized association of persons that is made a
party... It means that the defendant is a corporation existing by virtue of the Philippine
Corporation Law. There is no presumption that you are corporation. That is the reason why
facts showing capacity to sue and be sued, etc. must be averred with particularity.
Theres a case which you will study in Corporation Law whether a foreign corporation can
sue in Philippine court. Under the law, it can sue provided it is licensed to do business in the
Philippines. The SC emphasized that if a foreign corporation is suing somebody in Philippine
courts, the complaint must specifically allege that a foreign corporation is doing business in the
Philippines with a license to do. Otherwise, it cannot sue. Yaan!
A party desiring to raise an issue as to the legal existence of any
party or the capacity of any party to sue or be sued in a representative
capacity, shall do so by specific denial, which shall include such
supporting particulars as are peculiarly within the pleader's
knowledge (section 4, 2nd sentence)
EXAMPLE: You are the plaintiff corporation with juridical capacity. I am the defendant.
Suppose I will deny your capacity to sue. I will deny that you are a corporation licensed to do
business in the Philippines. Now, the law requires me to deny your legal capacity and I must
state the reason or basis of such denial why you are not of legal age, why you are not a
corporation.
This is so because the law says that when you deny or when you question the legal
existence of a party or the capacity of any party to sue and be sued, you shall do so by specific
denial which shall include such supporting particulars as are peculiarly within the defendants
knowledge. You cannot plead a general statement that you deny. Your denial must be particular.
You must be more specific about what you are denying.
ALLEGATION OF FRAUD OR MISTAKE
Sec. 5. Fraud, mistake, condition of the mind.- In all averments of
fraud or mistake, the circumstances constituting fraud or mistake
must be stated with particularity. Malice, intent, knowledge or other
condition of the mind of a person may be averred generally. (5a)
EXAMPLE: In annulment of a contract, fraud is one ground. Suppose the consent was
secured through fraud and plaintiff files a case that the defendant employed fraud in obtaining
his consent.
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Q: Is this statement sufficient?

A: No, because the circumstances constituting fraud or mistake must be stated with
particularity. The complaint must state how the fraud was committed. It must be described in
detail how the fraud took place.
Q: In the second sentence, why is it that malice, intent, etc. may be averred generally?
A: A general averment of malice or intent suffices because one cannot describe or
particularize what is in the mind of a party. I cannot describe in detail the malice or the
knowledge in your mind. I can only say it in general terms.
Fraud, on the other hand, is employed openly, by overt acts. How you are deceived is not
only in the mind. Those are manifested by external acts. Therefore, one can describe how a
fraud was committed by the other party.
Sec. 6. Judgment. In pleading a judgment or decision of a domestic
or foreign court, judicial or quasi-judicial tribunal, or of a board or
officer, it is sufficient to aver the judgment or decision without setting
forth matter showing jurisdiction to render it. (6)
Sometimes a party invokes a judgment of a court or cite a previous case like res adjudicata
to dismiss a case.
Q: Suppose you will ask the court to dismiss the case because there was already judgment
rendered by the court years ago and you simply says, There was a previous judgment. Is this
sufficient?
A: YES because the law presumes that the judgment is valid. And the presumption is that
the court had jurisdiction. You do not have to say that the court had jurisdiction over the subject
matter, issues, etc. when it tried the case years ago. So, it can be averred generally.
Sec. 9. Official document or act. In pleading an official document or
official act, it is sufficient to aver that the document was issued or the
act done in compliance with law. (9)
One can just plead the existence of a document made by the government. EXAMPLE: official
letter of the President, or official communication by a government agency. It is sufficient to aver
that the document was issued or an act done.
SUMMARY:
Q: What averment or allegations in pleadings may be done GENERALLY?
A: The following:
1.) Rule 8, Section 3 Conditions precedent;
2.) Rule 8, Section 5, 2nd sentence Conditions of the mind;
3.) Rule 8, Section 6 Judgment;
4.) Rule 8, Section 9 Official document or act
Q: What averments must be done with PARTICULARITY?
A: The following:
1.) Rule 8, Section 4, first sentence Capacity to sue and be sued;
2.) Rule 8, Section 4, 2nd sentence Legal existence of any party to sue or be sued;
3.) Rule 8, Section 5, first sentence Fraud or mistake
Sec. 7. Action or defense based on document. Whenever an action or

defense is based upon a written instrument or document, the
substance of such instrument or document shall be set forth in the
pleading, and the original or a copy thereof shall be attached to the
pleading as an exhibit, which shall be deemed to be a part of the
pleading, or said copy may with like effect be set forth in the pleading.
(7)
Not every document that is needed in trial is actionable document.
For value received, I promise to pay B P1 million not later than

one year from date with 2 percent per annum.
Signed: A
Q: Using the above promissory note, how should the pleading be worded?
A: Two ways of pleading of actionable document:
1.)
The substance shall be set forth in the pleading and the original or a copy thereof shall
be attached to the pleading as an exhibit, which shall be deemed as part of the
pleading. Party simply cites only important parts of the document, then attached the
document.
EXAMPLE:
So a promissory note to collect an unpaid loan is not only an evidence of you cause of action
but is it is the very cause of action or foundation of your cause of action. On the other hand, when
I have a receipt, the receipt is not only evidence of your defense but is the very foundation of
your defense. If I would like to sue you to annul a written contract, the contract to be rescinded
or annulled is the very cause of your action.
1.
2.
3.
But in a collection case, if aside from promissory note I wrote you several letter of demand
to pay. Such letter while they are relevant to the collection case, that is not the foundation of your
cause of action, although they are also important.
COMPLAINT
Plaintiff B is xxx of legal age xxx; Defendant A is xxxgayxxxx;

Sometime in December 31, 1997, defendant A secured a loan
from plaintiff B for a sum of P1 million payable not later
than December 31, 1998 with 2% interest per annum. Copy
of said Promissory Note hereto attached as EXHIBIT A;
The account is now overdue and despite demands of
defendant A still failed to pay B xxx.
So, the main features of the promissory note are recited in your pleading the
date when the loan was secured, the amount, the interest, etc. But still you have to
attach a copy of the promissory note, either xerox copy or the original.
Q: What is the purpose of the distinction between actionable and non-actionable document?
Q: And how do you plead an actionable document under Section 7?

A: There are two (2) options:
1.) The substance of such instrument or document, shall be set forth in the pleading
and the original or a copy thereof shall be attached as an exhibit.
2.) The copy of the document may with like effect quoted in the pleading in which
case, there is no need to attach the copy.
PROMISSORY NOTE:
December 31, 1997
Q: What is an actionable document?

A: An ACTIONABLE DOCUMENT is one which is the basis or the foundation of the cause of
action or defense and not merely an evidence of the cause of action or defense. (Araneta, Inc. vs.
Lyric Film Exchange, 58 Phil. 736) It is the very heart and soul of your cause of action or defense,
not merely an evidence thereof.
A: If the document is not actionable, there is no need to follow Section 7. If it is actionable, it

must be pleaded in the manner mentioned in Section 7. Also in Section 8, it is needed to contest
the genuiness of the document.
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In the first one, there is no need to copy it. Just mention the substance or features of he
promissory note. The entire document must be quoted in the pleading.
EXAMPLE:
ACTIONABLE DOCUMENTS
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2.)
Said copy may with like effect be set forth in the pleading. Document is quoted
verbatim.
EXAMPLE:
1.
2.
COMPLAINT
Plaintiff B is xxx of legal age xxx; Defendant A is xxxgayxxxx;

On Dec. 31, 1997 def. A secured a loan from plaintiff B which
is covered by a promissory note worded as follows:
PROMISSORY NOTE:
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when the figure was altered to P20,000 instead of P1,000 only, so there is falsification, then you
must deny the genuiness and due execution in your answer specifically and most importantly
your answer must VERIFIED AND UNDER OATH.
December 31, 1997

For value received, I promise to pay B P1
million not later than one year from date with
2 percent per annum.
Signed: A
3.
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The account is now overdue and despite demands of

defendant A still failed to pay B xxx.
So, you copy the entire promissory note verbatim. There is no need to attach a copy of the
promissory note. That is the second way.
If the denial is not verified and under oath, the genuineness and due execution of the
promissory note is deemed admitted.
Q: When you say you have admitted the genuiness and due execution of the document,
what are the specific facts that you have deemed admitted?
A: The answer is found in the landmark case of HIBBERD vs. RHODE (32 Phil. 476):
1.)
The party whose signature it bears signed it;
2.)
If signed by another, it was signed for him and with his authority;
Q: Pretty Maya told Papa Paul that her housemate Sexy Regina wanted to borrow
money from him. Paul agreed. Maya signed the promissory note: Regina as principal,
signed by Maya. But actually, Regina never ordered Maya to use her (Reginas) name.
When the note fell due without payment, Paul sued Regina. Regina denied agency but
failed to verify her answer. What is the effect?
A: Pretty Maya becomes agent of Sexy Regina. So, the defense of unauthorized
signature is automatically out.
Now, if the document is not classified as actionable, then there is no need to follow Section
7. Just imagine if you will apply Section 7 to all documents in your possession. If you intend to
present in evidence 50 documents and only one is actionable, ang 49 hindi, so you will have 49
annexes. So, ang pleading mo, kakapal. (parang mukha mo!)
Q: Suppose in the first way, the promissory note was not attached. What will happen?
A: The party violates Rule 8, Section 7. The adverse party may move to dismiss the
complaint for violation of the rules, if such document could not be secured.
3.)
If an actionable document is properly pleaded in your pleading in the manner mentioned in

Section 7, the adverse party is now obliged to follow Section 8 if he wants to contest such
document.
Sec. 8. How to contest such documents. When an action or defense is
founded upon a written instrument, copied in or attached to the
corresponding pleading as provided in the preceding section, the
genuineness and due execution of the instrument shall be deemed
admitted unless the adverse party, under oath, specifically denies
them, and sets forth what he claims to be the facts; but the
requirement of an oath does not apply when the adverse party does
not appear to be a party to the instrument or when compliance with
an order for an inspection of the original instrument is refused. (8a)
Q: Does every pleading have to be under oath?
A: GENERAL RULE: NO.
EXCEPTION: Except when the law requires it. Example: Section 8, Rule 8.
EXAMPLE: If the plaintiff sues you based on a promissory note which is properly pleaded
under Section 7 and you would like to contest the genuineness and due execution of the note like
At the time it was signed, it was in words and figures exactly as set out in the pleading
of the party relying upon it;
Q: Mr. Quiachon sued Mr. Tiamzon to collect a loan of P50,000 on a promissory
note. Mr. Tiamzon admitted liability but only to the amount of P5,000. Mr. Tiamzon
used falsification as a defense but his answer was not verified. What is the effect?
A: Mr. Tiamzon admits the genuiness of the promissory note that it was really
P50,000.
4.)
The document was delivered; and
5.)
The formal requisites of law, such as seal, acknowledgement (notarization) or revenue

stamp which it lacks, are waived by it.
So kung may konting diperensiya like there is notarial seal, no acknowledgment,
no revenue stamp, all these defects are deemed cured.
The SC said in HIBBERD that if you admit the genuineness and due execution of the
actionable document, defenses which are inconsistent with genuineness and due execution are
deemed automatically waived. Meaning, any defense which denies the genuineness or due
execution of the document is deemed automatically waived.
Q: What are the defenses which are no longer allowed once you admit the genuineness and
due execution of the actionable document?
A: The following:
1.)
2.)
3.)
4.)
5.)
The signature appearing in the document is a forgery;

In case it was signed by an agent in behalf of the corporation or partnership, or a
principal, the signature was unauthorized;
The corporation was not authorized under its charter to sign the instrument;
The party charged signed it in some other capacity than that alleged in the
pleading; and
It was never delivered. (Hibberd vs. Rhode, supra)
Q: Does it mean to say that when you admit impliedly the genuineness and due execution of
the actionable document, you have no more defense?
A: NO. What are no longer available are defenses which are inconsistent with your own
admission of the genuineness and due execution of the actionable document like forgery,
because you cannot admit that the document is genuine and at the same time allege that it is
forged. According to the SC in HIBBERD, you may still invoke defenses provided the defenses are
NOT inconsistent with your admission of the authenticity of the document.
Q: What defenses may be interposed notwithstanding admission of genuiness and due
execution of an actionable document as aforesaid?
A: In the case of HIBBERD, the following:
1.) payment;
2.) want or illegality of consideration;
3.) fraud;
4.) mistake;
5.) compromise;
6.) statute of limitation;
7.) estoppel;
8.) duress;
9.) minority; and
10.) imbecility
Now, if you do not verify you denial, there is already an advantage in my favor. So you
cannot anymore interpose the defense of for example, forgery because that is inconsistent with
your own admission of the genuineness and due execution of the actionable document. But what
if the you presented evidence to prove forgery? Can I waive the benefit of implied admission?
Q: May the benefit of the admission of genuineness and due execution of an actionable
document? If so, in what instances?
A: YES. In the following cases, the implied admission is deemed waived:
1.) Where the pleader presented witnesses to prove genuiness and due execution
and the adversary proved, without objection, the contrary. (Yu Chuck vs. Kong Li
Po, 46 Phil. 608);
2.) Where the pleader fails to object to evidence controverting the due execution.
(Legarda Koh vs. Ongsiaco, 36 Phil. 185)
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60
In other words, the lawyer of the defendant does not remember Section 8 and therefore the
denial is improper. But the lawyer of the plaintiff did not also remember Section 8 that when
there was evidence of forgery, he failed to object. So, the incompetence of the both lawyers
cancel each other. That is what happens if the lawyer does not know. Bobo! Maayo pa ang bulalo,
naay utok!
WHEN DENIAL NOT UNDER OATH STILL VALID
Q: When may a simple denial suffice? Meaning, what are the instances where the denial of
the genuineness of the document, which is not under oath, is valid?
A: Section 8 says, the requirement of an oath does not apply:
1.)
When the adverse party does not appear to be a party to the instrument;
EXAMPLE: Ms. Guadalope filed a case against Ms. Castillo based on a
contract entered by them. But before Ms. Guadalope filed the case, Ms. Castillo
died (simba ko! tok-tok!). So Ms. Guadalope filed against the heirs. The heirs
realized that the signature of Ms. Castillo in contract as forged. Even if the
answer of the heirs is not under oath, they can still prove forgery because they
are not party to the instrument.
2.)
When compliance with an order for an inspection of the original instrument is

refused;
3.)
When the document to be denied is not classified as an actionable document but

merely an evidentiary matter. This is because when the document if not
actionable, there is no need to follow Section 7.
REPLY; GENERAL RULE: OPTIONAL; EXCEPTION: SECTION 8
Normally, the person who is presenting the actionable document is the plaintiff.
PROBLEM: But suppose it is the defendant who is invoking an actionable document for his
defense. He claims to have paid the loan and have attached a copy of the RECEIPT to his answer.
The plaintiff looks at the document and realizes that his signature in the receipt is forged.
Q: What should the plaintiff do?
A: Based on Section 8, the plaintiff must deny the genuineness of the receipt specifically
under oath
Q: In what pleading should the plaintiff file where he will deny under oath the genuiness
and due execution of the receipt?
A: Plaintiff should file a REPLY and it must be under oath. If he will not file a reply, the
receipt is impliedly admitted to be genuine.
Q: But the plaintiff may argue that under Rule 6, Section 10 the filing of a reply is optional.
How do we reconcile it with Section 8?
A: Rule 6 is the general rule. Section 8 should prevail over Rule 6 because the former is a
specific provision that applies only to actionable document. It has been asked in the Bar:
Q: When is the filing of the reply compulsory?
A: When the defendant anchors his defense on an actionable document and plaintiff will
deny the genuineness and due execution of such document.
SPECIFIC DENIAL
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61
Q: What happens if a denial violates this first mode? Meaning, the pleader did not set forth
the substance of the matters relied upon to support his denial.
A: That is know was GENERAL DENIAL and it will have the effect of automatically admitting
the allegations in the complaint.
Q: Suppose the pleader will say, Defendant specifically denies the allegations in paragraph
2,4,7 without any further support for the denial. Is the denial specific?
A: NO. A denial does not become specific simply because he used the word specific. (Cortes
vs. Co Bun Kim, 90 Phil. 167) What makes a denial specific is compliance with Section 10.
We will relate Section 10 with Section 5 of Rule 6:

Sec. 5. Defenses. - Defenses may either be negative or affirmative.
a. A negative defense is the specific denial of the material fact
or facts alleged in the pleading of the claimant essential to his cause or
causes of action.
xxx
In an answer, defenses may either be negative or affirmative.
Q: Define negative defense.
A: Briefly, it is a defense of SPECIFIC DENIAL where the defendant denies the statement in
the complaint by stating the facts and the reason/s on which his denial is based.
Q: How is a specific denial done?
A: Rule 8, Section 10:
Sec. 10. Specific denial. A defendant must specify each material
allegation of fact the truth of which he does not admit and, whenever
practicable, shall set forth the substance of the matters upon which he
relies to support his denial. Where a defendant desires to deny only a
part of an averment, he shall specify so much of it as is true and
material and shall deny only the remainder. Where a defendant is
without knowledge or information sufficient to form a belief as to the
truth of a material averment made in the complaint, he shall so state,
and this shall have the effect of a denial. (10a)
Q: So what are the modes of specific denial?
A: Under Section 10, there are three (3) MODES OF SPECIFIC DENIAL:
FIRST MODE: A defendant must specify each material allegation
of fact the truth of which he does not admit and, whenever practicable,
shall set forth the substance of the matters upon which he relies to
support his denial
Meaning, you deny the allegation in the complaint but you must state the basis of your
denial that, that is not true because this is what is true. So you state your own side, your own
version. The purpose there is to lay your cards on the table to make it fair to the other side. Yaan!
SECOND MODE: Where a defendant desires to deny only a part of

an averment, he shall specify so much of it as is true and material and
shall deny only the remainder.
Sometimes an allegation may consist of 2 or more parts. Therefore the answer may admit
part 1 but part 2 is denied. Or, the substance of the allegation is actually admitted by the
qualification there is denied.
EXAMPLE: Plaintiff alleges that the Defendant is in possession of the property under
litigation in bad faith. Now, the defendant may admit that the property is in his possession but
he denies the qualification in bad faith possession is not in bad faith. Based on that, the
defendant should say, Defendant admits that portion of paragraph no. 2 that he is in possession
of the property in question; but denies that he is a possessor in bad faith or something to that
effect.
Therefore, when you say I deny the entire paragraph when actually you are not denying
the entire paragraph but only the qualification, that is called a NEGATIVE PREGNANT. Actually,
in the legal point of view, what is only denied is the qualification to the averment. The substance
of the allegation is actually admitted.
THIRD MODE: Where a defendant is without knowledge or
information sufficient to form a belief as to the truth of a material
averment made in the complaint, he shall so state, and this shall have
the effect of a denial
Meaning, I am not in a position to admit or to deny because I have no knowledge. How can I
admit or deny something which I do not know?
EXAMPLE: Plaintiff claims for moral damages because Defendant destroyed his reputation.
Defendant does not know that Plaintiff had sleepless nights, wounded feelings, serious anxiety,
etc. Here, Defendant cannot admit or deny those.
I have read pleadings where the pleader would say, Defendant has no knowledge or
information sufficient to form a belief as to the truth of the allegation in paragraphs 6, 7, 8, 9 of
the complaint and therefore he denies the same. Actually, there is something wrong there. How
can you deny something that you have no knowledge of. Just state, I have no knowledge. Then
period! And is has the automatic effect of a denial.
However, the SC warned that he third mode of denial should be done in good faith. If the
fact alleged is such that it is within your knowledge, it is impossible that it is not within your
knowledge, you cannot avail of the third mode of denial. Otherwise, if you will avail of the third
mode in bad faith, your denial will be treated as an admission. That is what happened in
CAPITOL MOTORS vs. YABUT (32 SCRA 1).
In CAPITOL MOTORS, suppose I file a case against you, Defendant borrowed money from
plaintiff in the sum of P10,000 payable one year from said date. And then you say, I have no
knowledge or information There is something wrong there. What you are trying to say there is
I do not know whether I borrowed money from you or not.
How can that be? It is either you borrowed money or you did not! That is why the SC said in
CAPITOL MOTORS, if you borrowed money, you say so. And if you did not, deny it. And then I will
allege there, The defendant have made partial payments. Then you will say, I have no
knowledge. My golly! You do not even know whether you paid me? In other words, talagang
evasive bah! You are trying to be clever and evasive. And if you do that, all your denials will be
treated as admissions. That is the warning in the third mode.
Sec. 11. Allegations not specifically denied deemed admitted. Material
averment in the complaint, other than those as to the amount of
unliquidated damages, shall be deemed admitted when not
specifically denied. Allegations of usury in a complaint to recover
usurious interest are deemed admitted if not denied under oath. (1a,
R9)
While the law says material averment in the complaint, this rule extends to counterclaims,
cross-claims and third-party complaints. (Valdez vs. Paras, L-11474, May 13, 1959)
The reason for the rule on specific denial is that, if there is a material averment in the
complaint and was not specifically denied, it is deemed admitted. However under Section 11,
there are averments in the complaint which are not deemed admitted even when not specifically
denied.
GENERAL RULE: Material averment in a complaint shall be deemed admitted when not
specifically denied.
EXCEPTION: Instances when averments in the complaint are not deemed admitted even
when not specifically denied:
1.)
2.)
3.)
4.)
Amount of unliquidated damages;

Immaterial averments (Worcester vs. Lorenzana, 56 O.G. 7932, Dec. 26, 1960)
Evidentiary matters; because a party is only obliged to aver ultimate facts;
(Agaton vs. Perez, L-19548, Dec. 22, 1966)
Conclusions of facts or law.
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Lets discuss the first exception AMOUNT OF UNLIQUIDATED DAMAGES is not deemed
admitted even if not specifically denied. So if the damages are liquidated, they are deemed
admitted. Examples of unliquidated damages are moral and exemplary damages. Or expenses
which I incurred in the hospital. Those are unliquidated damages. They are always subject to
evidence. You have to prove how much amount you are entitled to. That is why they are not
deemed admitted even if not specifically denied.
So if you are claiming P1 million damages for sleepless nights or besmirched reputation,
and I did not specifically denied such claim, it does not mean that you are automatically entitled
to P1 million. Hindi yan puwede. You have to present evidence that you are really entitled to P1
million. Yaan!
On the other hand, an example of liquidated damages is an obligation with a penal clause.
For example in our contract, it is stipulated that in case you cannot comply with your obligation,
you will pay me P1 million. So if you failed to specifically deny it, then you are deemed to have
admitted that I am entitled to P1 million. There is no need for computation because the amount
is already in the contract beforehand. The contract itself would show how much I am entitled.
Section 11 also says, Allegations of usury in a complaint to recover usurious interest are
deemed admitted if not denied under oath. Usury means you charge interest above the legal
interest provided by the usury law. If you want to deny my charge of usury, your answer must be
under oath. So, this is the second instance where a denial should be verified.
NOW, I wonder why this provision is here when as early as 1983 in the case of LIAM LAW
vs. OLYMPIC SAW MILL (129 SCRA 439), that usury is no longer existing and the SC stated in that
case that the provision of the Rules of Court in usury are deemed erased or superseded.
Obviously, the SC forgot what it said in the 1983. (Ulyanin!!)
Sec. 12. Striking out of pleading or matter contained therein. Upon
motion made by a party before responding to a pleading or, if no
responsive pleading is permitted by these Rules, upon motion made
by a party within twenty (20) days after the service of the pleading
upon him, or upon the court's own initiative at any time, the court may
order any pleading to be stricken out or that any sham or false,
redundant, immaterial, impertinent, or scandalous matter be stricken
out therefrom. (5, R9)
Before answering, the defendant can file a motion to strike out a pleading or a portion of a
pleading. Striking a pleading means that the pleading will be deemed erased as if it was never
filed. Or if a portion of the pleading be ordered stricken out or expunged where a pleading or a
portion thereof is sham or false, redundant, immaterial, impertinent, or a scandalous matter is
inserted in the pleading, is deemed erased. This is related to Rule 7, Section 3, third paragraph:
RULE 7, Sec. 3. Signature and address. x x x x
An unsigned pleading produces no legal effect. However, the
court may, in its discretion, allow such deficiency to be remedied if it
shall appear that the same was due to mere inadvertence and not
intended for delay. Counsel who deliberately files an unsigned

pleading, or signs a pleading in violation of this Rule, or alleges
scandalous or indecent matter therein, or fails to promptly report to
the court a change of his address, shall be subject to appropriate
disciplinary action.
So, if your pleading contains scandalous or indecent matters, the lawyer who files it may be
subjected to appropriate disciplinary actions.
Q: What if it is the reply is the one which contains scandalous matter?
A: A motion to strike may still be filed by the defendant within 20 days after the reply.
Rule 9
EFFECT OF FAILURE TO PLEAD
General Rule: DEFENSES AND OBJECTIONS NOT PLEADED EITHER IN A MOTION TO
DISMISS OR IN THE ANSWER ARE DEEMED WAIVED
Section 1. Defenses and objections not pleaded. Defenses and
objections not pleaded either in a motion to dismiss or in the answer
are deemed waived. However, when it appears from the pleadings or
the evidence on record that the court has no jurisdiction over the
subject matter, that there is another action pending between the same
parties for the same cause, or that the action is barred by a prior
judgment or by statute of limitations, the court shall dismiss the claim.
(2a)
GENERAL RULE: Defenses or objections not pleaded in a motion to dismiss or on answer
are deemed waived. If you do not plead your defense, the same is deemed waived. The court has
no jurisdiction over the issues.
EXAMPLE: In a collection case against you, you did not raise the defense of payment in your
answer. But during the trial, you attempted to prove that the loan has already been paid. Now,
that cannot be done because the defense of payment is deemed waived because you did not raise
it in your answer. In other words, the court never acquired jurisdiction over the issue.
So, there is no such thing as a surprise defense because the defense must be pleaded. If you
want to surprise the plaintiff during the trial by not raising your defense in your answer, you will
be the one who will be surprised because the court will not allow you. When the parties go to
court, the plaintiff already knows what are the defenses. They are already in the answer.
EXCEPTIONS:
Q: What defenses or objections can be taken cognizance of by the court despite the fact that
they are not raised in the motion to dismiss or answer?
A: Under Section 1, Rule 9, the following:
1.)
2.)
3.)
4.)
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That the court has no jurisdiction over the subject matter;

That there is another action pending with the same parties for the same cause
(litis pendentia;
That the action is barred by prior judgment (res adjudicata); and
That the action is barred by statute of limitation (prescription).
Take note that the exceptions can be raised at any time during or after the trial, or even for
the first time on appeal.
Now, the traditional rule to remember notwithstanding the SIBUNGHANOY Doctrine, is that,
when there is a defect in the jurisdiction of the court over the subject matter, the defect can be
raised at any stage of the proceeding even for the first time on appeal (Roxas vs. Raferty, 37 Phil.
957). This is because everything is null and void. Jurisdiction over the subject matter cannot be
conferred by agreement between the parties, by WAIVER, by silence of the defendant.
LITIS PENDENTIA. You file a another case while another action is pending between the
same parties for the same cause. That is actually splitting a cause of action because there is
already an action and then you file another action. The action can be dismissed on the ground
that there is a pending action.
RES ADJUDICATA. There was already a prior final judgment then you file another case
regarding the same issue. That is also splitting a cause of action.
PRESCRIPTION is not found in the old rule but is taken from decided cases. Among which
are the cases of
PNB vs. PEREZ (16 SCRA 279)
PEPSI COLA vs. GUANZON (172 SCRA 571)
HELD: The rule on waiver of defenses by failure to plead in the answer or
in a motion to dismiss does not apply when the plaintiffs own allegations in the
complaint show clearly that the action has prescribed in such a case the court
may motu propio dismiss the case on the ground of prescription.
Q: Can the court dismiss the action based on any of these grounds without the filing of a
motion to dismiss?
A: YES. It would seem so because the second sentence says, When it appears from the
pleadings or the evidence on record the court shall dismiss the claim. (This is an important
change)
Under the 1964 Rules, one of the grounds that you can raise at any stage of the proceeding
before judgment is failure to state a cause of action, but it disappears under the new rules. Does
it mean to say that you cannot raise it anymore? NO. It can still be raised because it can be taken
care of by another rule Rule 33 on Demurrer.
Sec. 2. Compulsory counterclaim, or cross-claim, not set up barred. A

compulsory counterclaim, or a cross-claim, not set up shall be barred.
(4a)
See discussions on Rule 6, Sections 7 and 8 on counterclaim and cross-claims, respectively.
RULE ON DEFAULT
Sec. 3. Default; declaration of. If the defending party fails to answer
within the time allowed therefor, the court shall, upon motion of the
claiming party with notice to the defending party, and proof of such
failure, declare the defending party in default. Thereupon, the court
shall proceed to render judgment granting the claimant such relief as
his pleading may warrant, unless the court in its discretion requires
the claimant to submit evidence. Such reception of evidence may be
delegated to the clerk of court. (1a, R18)
xxxxxx
A defending party is declared in DEFAULT if he fails to answer the complaint within the
time allowed therefor. The rule on answer is found in Rule 11. And under Rule 11 as a rule, you
have 15 days to file an answer counted from the time you are furnished a copy of the complaint
together with the summons
If the period to answer lapsed and there is no answer, the plaintiff will move to declare the
defendant in default on the ground of failure to file an answer to the complaint. So, the court will
issue an order of default declaring you as a defaulted defendant.
And from the time a party is declared in default, he loses his standing in court, although he
is still entitled to notice of subsequent proceedings. He cannot participate in the trial. He cannot
object to plaintiffs evidence. He cannot present his own evidence. In effect, the case will be
decided only on the basis of plaintiffs side without anymore hearing the defendant. And of
course, the plaintiff will win. It is like a boxing bout ba where the rule is, isa lang ang magsuntok. My golly! How can you win in that situation? That is the effect of default.
Take note that the word defending party applies not only to the original defendant but
even to the cross-defendant or defendant in a counterclaim.
Q: May a court declare a defendant in default without any motion?
A: NO, because the law says, upon motion of the claiming party.
Now, with NOTICE to the defending party is a new one. You must furnish a copy to the
defending party of your motion to order the defendant in default which abrogates previous
rulings.
Q: Suppose the defendant filed an answer but during the trial, he failed to appear. May he be
declared in default?
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A: NO, because the ground for default is failure to file an answer. The correct procedure is
for the trial to proceed without him. (Go Changjo vs. Roldan Sy-Changjo, 18 Phil. 405) That is
what you call EX-PARTE reception of evidence. Only one side will be heard.
BAR QUESTION: If the defendant is declared in default for failure to file an answer is
deemed to have admitted the allegations in the complaint to be true and correct?
A: YES, because the law NOW says, the court shall proceed to render judgment granting
such claimant such relief as his pleading may warrant. The reception of plaintiffs evidence is
already dispensed with. Wala ng reception of evidence. That is the GENERAL RULE. That is the
same as the summary rules and judgment on the pleadings and the court can grant the relief
without presentation of evidence.
HOWEVER under Section 3, it is discretionary upon the court to require the claimant to
submit evidence. EX-PARTE RECEPTION of evidence is OPTIONAL for the court. And such
reception of evidence may be delegated to the clerk of court. This is related to Section 9, Rule 30:
Rule 30, Sec. 9. Judge to receive evidence; delegation to clerk of court.
The judge of the court where the case is pending shall personally
receive the evidence to be adduced by the parties. However, in default
or ex parte hearings, and in any case where the parties agree in
writing, the court may delegate the reception of evidence to its clerk of
court who is a member of the bar. The clerk of court shall have no
power to rule on objections to any question or to the admission of
exhibits, which objections shall be resolved by the court upon
submission of his report and the transcripts within ten (10) days from
termination of the hearing. (n)
The reception of evidence maybe delegated to the clerk of court but the clerk of court must
be a lawyer, that is the condition. So if he is not a member of the bar, he is not authorize to
conduct or hear an ex-parte reception of evidence.
SUMMARY: Steps when the defendant fails to file an answer within the time allowed:
1.)
2.)
3.)
Motion to declare defendant in default;

Order of default;
Judgment based on the complaint of the plaintiff UNLESS court requires the
claimant to submit evidence (ex-parte presentation of plaintiffs evidence)
However, when should the court dispensed with the ex-parte presentation of evidence and
when should it require the claimant to submit evidence being discretionary? May ibang judges
who likes kapoy na, judgment kaagad! May iba naman, reception muna which will take time. In
my personal view, cases which are simple, presentation of evidence ex-parte can be dispensed
with like collection cases ba. Walang laban ang defendant talaga.
But in controversial cases, like recovery of a piece of land medyo mahirap yan. The judge
will not automatically decide in your favor simply because of failure to answer by the defendant.
The judge may still want to hear plaintiffs evidence. To my mind, that should be the policy
regarding this rule.
Q: If a defendant files an answer but did not furnish a copy of the answer to the plaintiff, can
the plaintiff move to declare the defendant in default?
A: YES, because the answer is deemed to have not been legally filed. It was not in
accordance with the Rules of Court. (Gonzales vs. Francisco, 49 Phil. 47) So the defendant must
furnish the plaintiff a copy of the answer because in the case of
RAMIREZ vs. COURT OF APPEALS
187 SCRA 153
HELD: The failure to furnish a copy of the answer to the adverse party in
itself is sufficient or valid basis for defendants default.
Q: May a defendant be declared in default while a motion to dismiss (Rule 16) or a motion
for bill of particulars (Rule 12) remains pending and undisposed of?
A: NO, because under the filing of a motion to dismiss or motion for bill of particulars
interrupts the running of the period to answer. It will run again from the moment he receives the
order denying his motion to dismiss or for bill of particulars. (Hernandez vs. Clapis, 87 Phil. 437)
In the case of
DEL CASTILLO vs. AGUINALDO

212 SCRA 169 [1992]
FACTS: The defendant filed a motion to dismiss under Rule 16 but his
motion to dismiss did not contain notice of time and place of hearing and the
motion was denied. Can he file an answer after filing the motion to dismiss?
HELD: NO. He can be ordered in default. The motion is a useless piece of
paper with no legal effect.
Any motion that does not comply with Rule 16 should not be accepted for
filing and if filed, is not entitled to judicial cognizance and does not affect any
reglementary period. Not having complied with the rules, the motion to dismiss
filed by the defendant did not stay the running of the reglementary period to file
an answer.
GOLDEN COUNTRY FARM, INC. vs. SANVAR DEVT CORP.
214 SCRA 295 [1992]
FACTS: Because of the filing of the motion to dismiss is 15 days, the
defendant filed a motion to dismiss on the 8th day. It was denied. So there is still
7 days to file an answer. On the 15th day, instead of filing an answer, he filed a
motion for reconsideration and the such motion was denied. Then he filed an
answer.
HELD: NO MORE. The filing of the motion to dismiss interrupted the period
to file an answer. When you receive an order, you still have the balance to file
your answer. And you did not file an answer instead, you file a motion for
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reconsideration. You took the risk. So defendants motion for reconsideration

which merely reiterated his ground in the motion to dismiss did not stay the
running of the period to file an answer.
(a) Effect of order of default. - A party in default shall be entitled to
notice of subsequent proceedings but not to take part in the trial. (2a,
R18)
So if you are declared in default, you cannot take part in the trial. You lose your standing,
you cannot cross-examine the witness of the plaintiff assuming there is a reception of evidence.
You cannot object to his evidence. You cannot even present your own evidence when you are in
default.
But what is NEW here is that, you are entitled to notice of subsequent proceedings which
abrogates the old rule. Under the old rules, you are not entitled to service of notice, orders,
except substantially amended pleadings, supplemental pleadings, final orders or judgments or
when you file a motion to set aside an order of default.
But NOW, wala na yan. You are now entitled to service of everything. You only lose you
standing in court but for the purpose of notice, you are entitled to service of every motion, every
pleading, every order.
HOW TO LIFT ORDER OF DEFAULT
(b) Relief from order of default. - A party declared in default may at
any time after notice thereof and before judgment file a motion under
oath to set aside the order of default upon proper showing that his
failure to answer was due to fraud, accident, mistake or excusable
negligence and that he has a meritorious defense. In such case, the
order of default may be set aside on such terms and conditions as the
judge may impose in the interest of justice. (3a, R18)
Q: What is the remedy of a defendant who has been declared in default?
A: One remedy under Section 3 paragraph [b] is that, provided there is still no default
judgment, he can still file a motion to set aside the order of default upon a proper showing that
his failure to answer was due to F.A.M.E. (Fraud, Accident, Mistake, or Excusable negligence) and
that he has a meritorious defense. [The discussions on FAME is in Rule 37 New Trial or
Reconsideration]
Meaning, even if you are a victim of FAME, if you have no meritorious defense, the court will
not lift the order of default. You are wasting my time. Kahit na pagbigyan kita, talo ka pa rin.
There is no chance for you to win anyway. But if you have a meritorious defense, there is no
guarantee that you will win but at least you have a fighting chance ba that your standing will be
restored.
Upon proof, the court will set aside or lift the order of default and will give the defendant an
opportunity to answer, where he will plead his supposed meritorious defenses. In effect, he
regains his standing in court.
Q: When can the defendant avail of this remedy?
A: He may file a motion to set aside the order of default at any time after notice thereof and
before judgment.
SUMMARY: Steps the defendant should take to set aside the order of default:
1.) File a motion to lift or set aside the order of default. The motion must be verified
and under oath;
2.) He must explain why he failed to file an answer due to FAME; and
3.) He must also show that he has a meritorious defense.
PARTIAL DEFAULT
(c) Effect of partial default. - When a pleading asserting a claim
states a common cause of action against several defending parties,
some of whom answer and the others fail to do so, the court shall try
the case against all upon the answers thus filed and render judgment
upon the evidence presented. (4a, R18)
This presupposes that there are two or more defendants. Say, one or some of the
defendants made an answer and the others did not. So, one or some of the defendants were
declared in default, the others were not.
EXAMPLE: Gary sued Bentong and Bayani. Bentong filed an answer. Bayani did not. Bayani
was declared in default but there can be no judgment against Bayani in the meantime because
under paragraph [c], the case will go to trial based on the answer of Bentong. The case will be
tried against both Bentong and Bayani based on the answer of Bentong.
The principle here is that, the answer filed by the answering defendant will automatically
benefit the non-answering defendant. The defense of Bentong will also be Bayanis defense.
Anyway there is a common or identical cause of action. The best example would be a promissory
note signed by both Bentong and Bayani and they bound themselves solidarily. Both of them
were sued. Bentong answered while Bayani did not, hence he is in default. Can there be a default
judgment against Bayani? NO, there will still be a trial based on the answer of Bentong. In effect,
Bentong will defend not only himself but also Bayani.
Q: Suppose during the trial, Bentong proved that the obligation has been extinguished,
which is also applicable to Bayani, and the complaint is dismissed, what is the effect?
A: Both Bentong and Bayani will win the case. So Bayani will be benefited by the answer of
his co-defendant Bentong. Hence, there is still a possibility that a defaulted defendant can win
based on our example.
On the other hand it is absurd if the answer of Bentong will not benefit the defaulting
defendant. EXAMPLE: Gary filed a case against Bentong and Bayani based on a promissory note
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on a loan secured by both, and Bayani defaulted. Bentong answered alleging payment. Suppose,
Bentong proved such defense, the effect is both Bentong and Bayani are absolved. If you say that
Bayani should lose because the answer of Bentong will not benefit Bayani, there will be two
conflicting decisions: Bayani is in default and thus, should pay the loan; and there is no more
loan as far as Bentong is concerned. Do you mean a loan is paid and at the same time unpaid?
Thats absurd!
But take NOTE that to apply the principle, there must be a common cause of action. If there
is no cause of action, while there may be a trial, the answer of Bentong is only for him. After the
trial, Bentong might be absolved from liability but the defaulting defendant Bayani will be held
liable because Bentongs answer does not cover Bayani. That is when there is no common cause
of action. In the case of
CO vs. ACOSTA (134 SCRA 185 [1985])
reiterating the case of
LIM TANHU vs. RAMOLETE (66 SCRA 425)
FACTS: Bentong and Bayani were (solidary debtors) sued by Gary for a loan
evidenced by a promissory note. Bentong filed an answer but Bayani defaulted.
The case was tried based on Bentongs answer. Gary move to drop Bentong from
the case but retained Bayani, the defaulted defendant so that Gary can secure an
immediate judgement.
ISSUE: Is the motion of Gary proper?
HELD: NO. When there is a common cause against two or more defendants,
if you drop the case against one, you drop the case against all. Selection is not
allowed. To drop Bentong means that the cause of action against him is weak.
Why should one drop somebody if a case against such person is meritorious? If
such is the fact, necessarily the cause of action against the other is also weak the
fact there is actually a common cause of action.
However, the ruling in ACOSTA should not be confused with the ruling in
IMSON vs. COURT OF APPEALS [1996 BAR]
239 SCRA 58 [1994]
FACTS: Imson was driving a Toyota Corolla when he was bumped by a Hino
Truck causing injury to Imson and totally wreaking his car. So he filed an action
for damages against several defendants. He impleaded all of them the driver,
the bus company owner and the insurance company. The insurance company
filed an answer but the owner and the driver did not. So both the owner and the
driver were declared in default.
Subsequently, lmson and the insurance company entered into a
compromise agreement wherein the latter paid him P70,000 which was its total
liability under the insurance contract. The claim was very big so the insurance
company offered to give the amount, Bahala ka sa sobra.
So when the case (between Imson and the insurance company) was
eventually dismissed because of the compromise agreement, the bus company
owner also moved to dismiss the case against him and the driver, arguing that
since they are all indispensable parties under a common cause of action, the
dismissal of the case against the insurance company should likewise result to the
dismissal of the case against them citing the case of ACOSTA and RAMOLETE.
ISSUE #1: Is there a common cause of action among the three of them?
HELD: The owner is wrong. There is NO common cause of action. The cause
of action against the driver is based on quasi-delict under Article 2178 of the
Civil Code. The liability against the owner is also based on quasi-delict but on
another provision of the Civil Code Article 2180 (the liability of the employer
for the delict or wrong of the employee) So, the liability of the owner and the
driver is based on quasi -delict but under separate provisions of the Civil Code.
Now, the cause of action against the insurance company is not based on
quasi-delict but based on contract because he seeks to recover liability from the
insurance company based on the third-party liability clause of the insurance
contract with the company.
So, there no common cause of action among them. Yaaann!
ISSUE #2: Is the insurance company an indispensable party? Because if it is
so and he is removed from the case, the case cannot proceed without him.
HELD: NO. The insurance company is not an indispensable party.
It is true that all of Imsons claims in civil case is premised on the wrong
committed by defendant truck driver. Concededly, the truck driver is an
indispensable party to the suit. The other defendants, however, cannot be
categorized as indispensable parties. They are merely necessary parties to the
case. It is easy to see that if any of them had been impleaded as defendant
(meaning, the insurance company or the owner were impleaded), the case would
still proceed without prejudicing the party not impleaded.
Thus, if petitioner did not sue the insurance company, the omission would
not cause the dismissal of the suit against the other defendants. Even without the
insurer, the trial court would not lose its competency to act completely and
validly on the damage suit. The insurer, clearly, is not an indispensable party. It
is a necessary party.
(d) Extent of relief to be awarded. - A judgment rendered against a
party in default shall not exceed the amount or be different in kind
from that prayed for nor award unliquidated damages. (5a, R18)
This is what we call LIMITATIONS on a default judgment:
1.) The default judgment should not exceed the amount prayed for in the complaint;
2.) The default judgment should not be different in kind from that prayed for in the
complaint;
3.) The default judgment should not award unliquidated damages.
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Q: In the complaint, the claim is P300,000. The defendant defaulted. The court required the
plaintiff to present his evidence and during the trial, the latter proved P500,000 total claim. Can
the court award P500,000 claim as proved?
A: NO. It should only be P300,000 as prayed for in the complaint.
Q: Suppose during the trial, only P200,000 was proved. What should be the amount of the
default judgment?
A: Only P200,000 as proved because it did not exceed the amount prayed for in the
complaint.
Therefore, the rule is, the default judgement cannot exceed the amount prayed for in the
complaint although it may be less than it. Yaannn!
FUNDAMENTAL REASON ON THE RULE ON DEFAULT
What is the reason behind this? You have to know the philosophy on default to understand
the reason behind paragraph [d]. Default means the defendant failed to file an answer despite
the fact that he was properly summoned.
Q: If a defendant failed to file an answer, what may be the reasons behind that? Why did he
not file an answer?
A: In the case of LIM TOCO vs. GO FAY, (80 Phil 166), there are two (2) possible reasons:
1.)
2.)
Defendant deliberately did not answer because he believed that he had no good
defense, and that the claim is fair. And if he will make an answer, still he will not
win and would just incur expenses;
He had a meritorious defense and he wanted to answer but for one reason or
another beyond his control, he failed to file his answer.
Q: In the second possibility the defendant had a defense and wanted to file an answer but
failed to file an answer, what is the remedy of such defendant?
A: It is paragraph [b] file a motion to lift the order of default and state the reasons beyond
ones control fraud, mistake, accident, or excusable negligence (FAME) and that there is a
meritorious defense.
Now suppose he did not answer because he thinks the claim is fair and so he will just pay.
Then, the contingency is paragraph [d] rest assured that the judgment will not exceed the
amount or be different in kind from that prayed for. At least, you will not be surprised.
Just imagine, if you file a case against me for P200,000 damages and then I thought its fair.
So I allowed myself to be defaulted because anyway its only P200,000 because if I file my
answer, the costs could increase. And then during the trial, you proved that the damages were in
fact P2 million. So, when I received the judgment it was already P2 million when the complaint
was only for P200,000. Now, if you knew that would be the case, then you would have fought it
out. In other words, its unfair. Hence, the reason.
Q: If the defendant filed an answer but failed to appear during trial, what will happen?
A: The case will proceed and there will be a presentation of evidence EX-PARTE.
Now if a person is declared in default, it is also possible that an Ex Parte presentation of
evidence will be ordered.
MANGELIN vs. COURT OF APPEALS
215 SCRA 230 [1992]
ISSUE: What is the difference between ex-parte presentation of evidence by
virtue of default judgment AND ex-parte presentation of evidence by failure to
appear during the trial
HELD: In reception of evidence due to DEFAULT ORDER, paragraph [d]
applies the judgment cannot exceed the amount or be different in kind from
that prayed for in the complaint.
BUT if theres an ex-parte reception of evidence against a defendant who
filed an answer but FAILED TO APPEAR during the trial, the limitations in
paragraph [d] does not apply. Therefore in this case, a greater amount than that
prayed for in the complaint, or a different nature of relief may be awarded so
long as the same are proved.
It may be pointed out that there is a difference between a judgment against
a defendant based on evidence presented ex-parte pursuant to a default order
and one based on evidence presented ex-parte and against a defendant who had
filed an answer but who failed to appear at the hearing. In the former, Section 3
[d] of Rule 9 provides that the judgment against the defendant should not exceed
the amount or be different in kind from that prayed for. In the latter, however,
the award may exceed the amount or be different in kind from that prayed for.
This is because when there is an ex parte presentation of evidence due to failure to appear
in trial, ones standing in court is not lost. HE can still present evidence later to refute the
plaintiffs evidence. He simply waived the rights attached on particular hearing but not to all
subsequent trials. In judgement by default, he actually loses his standing in court.
They added new (third) limitation Unliquidated damages cannot be awarded in default
judgment. Obviously liquidated ones can be.
Q: What is the difference between UNLIQUIDATED damages and LIQUIDATED damages?
A: UNLIQUIDATED DAMAGES are those which are still subject to evidence before it can
properly be awarded such as the presentation of receipts in terms of actual damages, or taking of
testimonies to determine mental anguish or besmirched reputation in cases of moral damages.
LIQUIDATED DAMAGES are those which are already fixed and proof or evidence to
establish the same are not required. An example is an obligation with a penal clause like an
agreement to construct a house and upon failure to finish the same within a stipulated period,
the contractor is liable for P10,000 for every day of delay. The amount is already fixed based on
the contract price and the penalty provided and such other circumstances as stipulated.
Now, this third limitation is one of the provisions that I criticized. It should not be here.
Something is wrong here. Last September 1997 during the BAR exams, the secretary of the
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committee which drafted this, the former clerk of court of the SC, Daniel Martinez asked for
comments on the New (1997) Rules. I told him about the new Rules on Default, asking him who
placed the provision there. He said it was Justice Ferias idea.
J. Feria said, Kawawa naman kasi yung tao, na-default na titirahin mo pa ng unliquidated
damages. But I said that there is something wrong here. For EXAMPLE: You filed a case against
me na puro damages compensatory , moral , etc. and I believe I will lose the case if I go to trial.
So, my strategy now would to have myself declared in default because anyway, those
unliquidated damages cannot be awarded by default.
In other words, they have placed the defaulted defendant in a better position when he will
file an answer because if he files an answer and goes to trial, he might lose. So, if he allows
himself to be defaulted, the court can never award the damages. This is the effect of the new
limitation. That is why Im against this change here.
So, in an action for damages, I will never answer para pag ma-default ako, the court can
never award those damages. Because if I will answer, eh baka ma-award pa. In other words, I will
win the case simply because there is no way for the court to award the damages. And most
damages are usually those unliquidated damages.
(e) Where no defaults allowed. - If the defending party in an action
for annulment or declaration of nullity of marriage or for legal
separation fails to answer, the court shall order the prosecuting
attorney to investigate whether or not a collusion between the parties
exists, and if there is no collusion, to intervene for the State in order to
see to it that the evidence submitted is not fabricated. (6a, R18)
This refers to marital relations referred to in the Family Code: Annulment of marriage;
Declaration of nullity of marriage; Legal Separation. And the policy of the State is to preserve the
marriage and not encourage break-ups.
Now, in the absence of this provision, husband and wife quarrels and then they decide to
separate. Wife will file a case for legal separation with the agreement that the husband will not
answer. Being in default, there will be a judgement in default and in a months time marriage will
be severed for the meantime. The provision then prohibits default in marital relations cases to
preserve and uphold public policy.
Q: What if the party did not really file an answer?
A: The court is bound to find out whether there is a collusion between the parties whether
the act is deliberate without agreement. We already know that there should be presentation of
evidence. And the law requires the State to intervene. The fiscal is responsible to see to it that the
evidence is not fabricated, the same is legitimate.
Relate this provision of the rule to Articles 48 and 60 of the Family Code:
Family Code, Art. 48. In all cases of annulment or declaration of
absolute nullity of marriage, the court shall order the prosecuting
attorney or fiscal assigned to it to appear on behalf of the State to take
steps to prevent collusion between the parties and to take care that
the evidence is not fabricated or suppressed.
In the cases referred to in the preceding paragraph, no judgment
shall be based upon a stipulation of facts or confession of judgment.
Family Code, Art. 60. No decree of legal separation shall be based
upon a stipulation of facts or a confession of judgment.
In any case, the court shall order the prosecuting attorney or
fiscal assigned to it to take steps to prevent collusion between the
parties and to take care that the evidence is not fabricated or
suppressed.
Rule 10
AMENDED AND SUPPLEMENTAL PLEADINGS
Part I. AMENDMENTS
Sec. 1. Amendments in general. - Pleadings may be amended by
adding or striking out an allegation or the name of any party, or by
correcting a mistake in the name of a party 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 expeditious and inexpensive
manner. (1)
What do you understand by amendment? The general meaning of amendment is change.
Now can we amend pleadings, change it? Yes.
Q: How do you amend a pleading?
A: Well, any type of change you can add a word or a sentence or you strike out an
allegation or you add or strike out a party; you correct a mistake in the name of a party or
inadequate allegation or description in any other respect. As a matter of fact, if you correct only
one letter, that is already an amendment.
So you can amend by removing something, adding something, or changing something by
substituting another word. You can amend by removing an entire paragraph, an entire sentence,
a phrase, or a word. So that is what amendment is all about. As a matter of fact, before reaching
Rule 10, there are provisions where amendments have already been touched upon, one of which
is Rule 1, Section 5:
Sec. 5. Commencement of action.- A civil action is commenced by the
filing of the original complaint in court. If an additional defendant is
impleaded in a later pleading, the action is commenced with regard to
him on the date of the filing of such later pleading, irrespective of
whether the motion for its admission, if necessary, is denied by the
court.
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So in other words, if I file a complaint against A, then later on I will include another
defendant, the inclusion of an additional defendant party is an amendment.
Q: Suppose I will file a case against Jacques today, January 9, then one month from today I
will file another complaint to include an additional defendant, Tikla. When is the case deemed
commenced?
A: According to Rule 1, Section 5, as far as Jacques is concerned, the original defendant, the
case against him is commenced today. But as far as Tikla is concerned, the additional defendant,
the case is commenced not upon the filing of the original complaint, but on the date when he is
included in the amended complaint. So, the amendment does not retroact to the date of the filing
of the original action.
Q: What is the policy of the law on amendments? Should it be encouraged or discouraged?
If a party wants to amend his complaint or answer, should the court be liberal in allowing the
amendment or should it restrict, as a general rule, and not allow the amendment?
A: Section 1 says that the purpose of amendment is that the actual merits of the controversy
may speedily be determined without regard to technicalities, and in the most expeditious and
inexpensive manner. According to the SC, amendments to pleadings are favored and should be
liberally allowed in order (a) to determine every case as far as possible on its actual merits
without regard to technicalities, (b) to speed up the trial of cases, and (c) to prevent unnecessary
expenses. (Verzosa vs. Verzosa, L-25603, Nov. 27, 1968; Cese vs. GSIS, L-135814, Aug. 31, 1960)
EXAMPLE: The plaintiff files his complaint or the defendant files his answer and then later
on he realizes that his cause of action is wrong or that his defense is wrong. He would like to
change his complaint or change his answer. All he has to do is amend his complaint or answer.
The court cannot stop him from changing his complaint or changing his answer because the
purpose of litigation is: the real nature of controversy will be litigated in court. You cannot
normally stop the party from ventilating his real cause of action or his real defense so that the
rule is that amendments should be liberally allowed in the furtherance of justice and that the real
merits of the case will come out in court. That is what you have to remember about concept of
amendments and the policy of the rules on amendments.
TYPES OF AMENDMENTS:
The following are the important points to remember here:
FIRST, there are two types of amendment of pleadings under the rules:
1.) An amendment as a matter of right; or
2.) An amendment as a matter of judicial discretion
SECOND, an amendment could be
1.) a formal amendment; or
2.) a substantial amendment
These are the same classification under the Rules on Criminal Procedure under Rule 110.
Amendment as a MATTER OF RIGHT; and
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Amendment as a MATTER OF JUDICIAL DISCRETION

AMENDMENT AS A MATTER OF RIGHT simply means that the party has the unconditional
action or right to amend his pleading. The court has no right to prevent him from amending. The
opposite party has no right to oppose the amendment.
AMENDMENT AS A MATTER OF JUDICIAL DISCRETION simply means that the court may or
may not allow the amendment. So the other party has the right to oppose.
AMENDMENT AS A MATTER OF RIGHT

Q: When is amendment a matter of right?
A: Section 2:
Sec. 2. Amendments as a matter of right. - A party may amend his
pleading once as a matter of right at any time before a responsive
pleading is served or, in the case of a reply, at any time within ten (10)
days after it is served. (2a)
PROBLEM: I am the plaintiff, I file a complaint. I want to amend my complaint. When is the
amendment a matter of right?
A: At any time a responsive pleading is served to the complaint. Meaning, at any time
before the defendant has filed his answer, the plaintiff may change his complaint at any time. He
may change it in any manner, substantially or formally.
Q: How about the defendant? Suppose he wants to change his answer, when is his right
absolute or as a matter of fact right?
A: At any time before a reply by the plaintiff is filed or before the expiration of the period to
file a reply because a reply may or may be not be filed.
Q: How about if you want to amend your reply? You cannot say before a responsive
pleading is served because there is no more responsive pleading to the reply.
A: So under Section 2, the plaintiff can amend his reply at any time within ten (10) days
after it is served.
Q: Is there any other instance when amendment is a matter of right even if there is already
an answer or even in the middle of the trial the party can still change his pleading and it seems
that the court should allow it?
A: Yes, there is a second instance, when the amendment is FORMAL IN NATURE as found in
Section 4:
Sec. 4. Formal amendments. - A defect in the designation of the
parties and other clearly clerical or typographical errors may be
summarily corrected by the court at any stage of the action, at its
initiative or on motion, provided no prejudice is caused thereby to the
adverse party. (4a)
When the amendment is fairly formal, it can be done anytime. As a matter of fact it can be
summarily corrected by the court at any stage of the action, upon motion or even without
motion, the court will order the amendment. Because anyway that is a harmless correction.
NOTE: Change of amount of damages is only formal because there is no change in the cause
of action.
SUMMARY: Amendment as a matter of right:
1.) Before an answer is filed (Complaint);
2.) Before a reply is filed or before the period for filing a reply expires
(Answer);
3.) Any time within 10 days after it is served (Reply); and
4.) Formal amendment
AMENDMENT AS A MATTER OF JUDICIAL DISCRETION

So we will now go to substantial amendments which are a matter of judicial discretion, that
is Section 3:
Sec. 3. Amendments by leave of court. - Except as provided in the
next preceding section, substantial amendments 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 matters provided in this section shall be made upon
motion filed in court, and after notice to the adverse party, and an
opportunity to be heard. (3a)
Q: When is an amendment a matter of judicial discretion?
A: The amendment must be substantial and the adverse party has already filed and served a
copy of his responsive pleading.
PROBLEM: I will file my complaint against you and you will file your answer. After you
have filed your answer, I want to amend my complaint and my amendments is not merely formal
but something substantial, like my cause of action will not be the same anymore.
Q: Can it still be done?
A: YES, BUT this time it is a matter of judicial discretion. It must be with leave of court. So I
will have to file a motion in court to allow or admit the proposed amended complaint. I will
furnish a copy of the motion to my opponent together with a copy of the amended complaint and
the other party has the right to oppose the amendment. So the court will hear and decide
whether to allow the amendment or not.
Q: Assuming that the amendment is a matter of judicial discretion, how should the court
resolve it? Assuming that the argument is 50-50 and the court is deliberating whether or not to
allow the amendment.
A: Based on established jurisprudence, the court should always allow the amendment
because of the liberal policy of the rules. Amendments of pleadings should be liberally allowed
in order that the real merits of the case can be ventilated in court without regard to
technicalities. So the court will always lean on allowing a pleading to be amended. That is the
liberal policy.
LIMITATIONS TO THE LIBERAL POLICY IN AMENDMENTS TO PLEADINGS
Q: What are the limitations to this liberal policy in allowing amendments? Meaning, when
can the court refuse to allow the amendment and when can you validly oppose it?
A: The following:
1.) when the amendment is to delay the action (Section 3);
2.) when the amendment is for the purpose of making the complaint confer
jurisdiction upon the court (Rosario vs. Carangdang, 96 Phil. 845);
3.) when the amendment is for the purpose of curing a premature or non-existing
cause of action (Limpangco vs. Mercado, 10 Phil. 508; Wong vs. Yatco, 99 Phil.
791)
1.) WHEN THE AMENDMENT IS TO DELAY THE ACTION

The second sentence of Section 3 says that such leave may be refused if it appears that the
motion was made with intent to delay. Meaning, the motion to amend is dilatory. Example: a
case is filed against the defendant based on a cause of action then trialtrialthen the case is
already about to end. Then the plaintiff says he wants to amend his complaint and change his
cause of action. I dont think the court will allow it. Thats too much.
Or, the defendant will say that he would like to change his defense. I dont think the court
will agree with that situation because it appears that the motion to amend is already dilatory.
Why did it take you one year to realize that your cause of action or your defense is wrong? So
that is a limitation where the court may refuse to apply the principles on liberality. The liberal
policy becomes weaker or is working against you the longer you delay your amendment because
it might already be interpreted to be dilatory.
Now if you will notice, there is another limitation found in the old rules that is gone here,
and that is : That the amendment will not be allowed if it will SUBSTANTIALLY alter the cause of
action or defense (Torres vs. Tomacruz, 49 Phil. 913) The implication here is that, since
amendment is favored, even if you alter you cause of action or defense, you should not prevent
the other party provided that it is not dilatory. And the definition of this limitation is a
confirmation of what the SC said in some cases like the case of
MARINI-GONZALES vs. LOOD
148 SCRA 452
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HELD: While the Rules of Court authorize the courts to disallow

amendment of pleadings when it appears that the same is made to delay an
action or that the cause of action or defense is substantially altered thereby, the
rule is not absolute. It is discretionary.
Courts are not precluded from allowing amendments of pleadings even if
the same will substantially change the cause of action or defense provided that
such amendments do not result in a substantial injury to the adverse party. This
is due to the permissive character of said rule [which provides: may refuse]. In
fact, this Court has ruled that amendments to pleadings are favored and should
be liberally allowed in the furtherance of justice.
That is why these are enough reason to delete that limitation. But if you are going to change
your cause of action or defense when the trial is almost over, hindi na puwede because that will
be dilatory. But if you want to change it before the trial, that it still allowed, even if it is
substantial in nature. Thats why this limitation disappeared. But despite the fact that there is
only one limitation now left, it is conceded that there are still limitations not found in the law
which have remained intact.
2.) WHEN THE AMENDMENT IS FOR THE PURPOSE OF MAKING THE COMPLAINT CONFER
JURISDICTION UPON THE COURT
In other words, based on the original complaint the court has no jurisdiction over the
subject matter. So I will amend the complaint so that the court will have jurisdiction. Well, that
will not be allowed. So, jurisdiction by the court cannot be conferred by amendment when the
original complaint shows that the court has no jurisdiction.
For EXAMPLE: I will file a complaint for an unpaid loan and the amount is exactly P200,000
only. Where should I file the complaint? MTC. But by mistake I file it in the RTC and later I
realized that the case should have been filed in the MTC because the jurisdiction of the RTC
should be above P200,000. So I will amend my complaint and change the complaint and say that
my claim is P100,001.00. The obvious purpose of the amendment is to make the case fall within
the jurisdiction of the RTC. According to the SC, it cannot be done.
The rule here is when in its face, the complaint shows that the court has no jurisdiction over
the subject matter, the court has no authority to act in the case. And if you move to amend it and
ask the court to allow the amendment, you are assuming that the court has the authority to act
on the case. But the court cant allow it because the court has no authority to act. So the court
even is not authorized to allow the amendment because it has no authority to act in the first
place. How can you allow something when you do not have the authority to act? My golly!
So according to the SC, when its on very face the complaint shows that the court has no
jurisdiction, the court has only one authority and its only authority is to dismiss the case. So with
that an amendment cannot confer jurisdiction.
3.) WHEN THE AMENDMENT IS FOR THE PURPOSE OF CURING A PREMATURE OR NONEXISTING CAUSE OF ACTION
Meaning, on its very face, there is no cause of action, there is no case. There is no delict or
there is no wrong. Now how can you create a delict or wrong by amending your complaint? In
effect, you are creating something out of nothing.
BAR QUESTION: How do you distinguish a NON-EXISTENT cause of action from
IMPERFECT cause of action?
1.)
2.)
In a NON-EXISTENT cause of action, there is yet no delict or wrong committed by

the defendant (Limpangco vs. Mercado, 10 Phil. 508) whereas
In an IMPERFECT cause of action, a delict or wrong has already been committed
and alleged in the complaint, but he cause of action is incomplete (Alto
Surety vs. Aguilar, L-5625, March 16, 1945); and
a NON-EXISTENT cause of action is not curable by amendment (Limpangco vs.
Mercado, 10 Phil. 508; Surigao Mine vs. Harris, 68 Phil. 113) whereas
an IMPERFECT cause of action is curable by amendment (Alto Surety vs. Aguilar,
L-5625, March 16, 1945; Ramos vs. Gibbon, 67 Phil. 371).
BAR QUESTION: Suppose the filing of the complaint will lapse on January 20 and I will file
the complaint today so the running of the period will be interrupted. Suppose I will amend my
complaint next month, on February. Question: Is prescription properly interrupted? When an
original complaint is amended later, when is the prescriptive period for filing the action
interrupted? Upon the filing of the original complaint or upon the filing of the amended
complaint?
A: It DEPENDS upon the nature of the amendment:
a.) If the amendment introduces a new and different cause of action, then the
prescriptive period is deemed interrupted upon the filing of the amended
complaint; (Ruymann vs. Dir. of Lands, 34 Phil. 428)
b.)
But where the amendment has not altered or changed the original cause of
action, no different cause of action is introduced in the amended complaint, then
the interruption of the prescriptive period retroacts on the date of the filing of
the original complaint. (Pangasinan Trans. CO. vs. Phil. Farming Co., 81 Phil. 273;
Maniago vs. Mallari, 52 O.G. 180, October 31, 1956)
EXAMPLE: I will file today a case for damages arising for quasi-delict. And then one or two
months from now I will amend my complaint from damages arising from culpa aquiliana to
damages arising from culpa contractual. Is that a different cause of action? Yes, so the
prescriptive period for culpa contractual is deemed filed next month, not this month, because
that is a different cause of action.
EXAMPLE: But suppose I file a case against you for culpa aquiliana, and my claim is one
million. Next month I amend my complaint for damages from one million pesos to two million
pesos. Did I change my cause of action? No, it is still the same cause of actionculpa aquiliana.
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Therefore, the prescriptive period is deemed interrupted as of the date of the filing of the
original complaint.
AMENDMENTS TO PLEADINGS IN CRIMINAL CASES
Now, the classifications of amendments under the rule on criminal procedure are the same
because there is such a thing as amendments on the criminal complaints or informations as a
matter of right on the part of the prosecution and amendments as a matter of judicial discretion.
And under the rules of criminal procedure, an amendment can either be formal or substantially
received. There is some difference in the rules.
How do you differentiate the amendment of a pleading, under the rules on civil procedure
and the amendment of a criminal complaint or information in criminal cases? Take note that
there is no Answer in criminal cases. The accused is not obliged to file answer but the
counterpart of answer in criminal cases is the plea, where he pleads either guilty or not guilty.
Under the rules on criminal procedure, at anytime before the arraignment or before he
enters plea, the amendment of information is a matter of right, either in form or in substance.
EXAMPLE: The prosecution files an information against you for homicide and then the
prosecution wants to agree to murder. Can it be done? YES, for as long as the accused has not
yet entered his plea.
So it is almost the same as in civil cases. For as long as there is no responsive, pleading the
amendment is a matter of right whether in substance or in form.
Q: Now in criminal cases, AFTER the accused had already entered his plea to the original
charged, is amendment still allowed? Can the prosecution still amend?
A: YES. But what is allowed is only formal amendment. Substantial amendment is 100%
prohibited in criminal cases. But in civil cases, puwede.
OBJECTIONS AND DEFENSES NOT RAISED ARE DEEMED WAIVED; EXCEPTION
Sec. 5. Amendment to conform to or authorize presentation of evidence.
- When issues not raised by the pleadings are tried with the express or
implied consent of the parties, they shall be treated in all respects as if
they had been raised in the pleadings. Such amendment 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 of any
party at any time, even after judgment; but failure to amend does not
affect the result of the trial of these issues. If evidence is objected to at
the trial on the ground that it is not within the issues made by the
pleadings, the court may allow the pleadings to be amended and shall
do so with liberality if the presentation of the merits of the action and
the ends of substantial justice will be subserved thereby. The court
may grant a continuance to enable the amendment to be made. (5a)
Q: May issues not raised in the pleadings be tried in court during the trial?
A: As a GENERAL RULE, a defendant during the trial is not allowed to prove a defense that
is not raised in the pleadings based on Rule 9, Section 1. The court has no jurisdiction over the
issue. Thats why there is no such thing as surprise defense because a defense that is not raised
is deemed waived.
Q: Is there an EXCEPTION to Rule 9, Section 1? Can the rule be relaxed?
A: YES. Section 5 is a relaxation of the rule specifically the first sentence: when issues not
raised in the pleadings are tried with the express or implied consent of the parties, they shall be
treated in all respects as if they had been raised in the pleadings.
EXAMPLE: In a collection case, the defendant in his answer raised a defense that the money
obtained from the defendants was not a loan but a donation. During the trial, he attempted to
prove that it was a loan but it was already fully paid. So he is now proving the defense of
payment. He is practically changing his defense. If you follow Rule 9, Section 1, that is not
allowed.
But suppose the parties during the trial, the plaintiff agrees that the defendant will prove
that the obligation is paid, then it can be done because issues now raised in the pleadings are
tried with the express consent of the parties. They shall be treated in all respects as if they had
been raised in the pleadings.
In the case of implied consent, the best example is when the defendant attempts to prove
payment and the plaintiff FAILED TO OBJECT. So there is now an implied consent by the parties.
Therefore, the case can now be tried in the issue as if they had been raised in the pleadings. That
is what we call the principle of estoppel. The parties are in estoppel because they expressly or
impliedly agreed to try an issue which is not raised in the pleadings. The court will now render
judgment and discuss the evidence and discuss whether the obligation has been paid or not.
So if it happens, the decision will not jibe with the pleadings. If you read the complaint and
the answer, there is no mention of payment but in the decision resolved the case on that issue.
The pleadings are not in harmony with the decision.
Q: So how will you harmonize the two pleadings and the decision?
A: The remedy according to Section 5 is to amend the pleadings. We can amend the
pleadings to make them conform with the evidence. That is why the law says: such amendment
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 of any party at any time, even after judgment.
So even after the judgment, you can amend the pleading in order to harmonize with the
evidence. Normally, the evidence should conform to the pleading under Rule 9. In this case,
baliktad! it is the pleading which is being amended to conform to the evidence. It is the exact
opposite.
Normally that is for the benefit of the appellate court in case the decision will be the case
will be appealed. The CA will read the complaint and the answer, wala mang payment dito!
But when you read the decision, the main issue was payment not found in the complaint and the
answer. So there might be confusion. So amendment is necessary at anytime, even after
judgment.
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Q: But suppose the parties never bothered to amend the pleadings, is there a valid
judgment?
A: YES because the law says, but failure to amend does not affect the result of the trial of
these issues. So, there is a valid trial and the court acquires jurisdiction over the issues because
of their implied or express consent. The best example is FAILURE TO OBJECT.
if the evidence is objected to at the trial on the ground that it was not within the
issues made by the pleadings, the court may allow the pleadings to be amended and shall
do so with liberality if the presentation of the merits of the action and the ends of
substantial justice will be subserved thereby.
EXAMPLE: The defendant during the trial attempted to prove the obligation that it is paid.
The lawyer of the plaintiff is alert and objected thereby, You cannot prove that defense because
you never raise a defense of payment in your answer. Is the objection correct? YES because of
Rule 9, Section 1. The court affirmed the plaintiff that one cannot prove the defense of payment
because you never raised it in your answer. There is no express or implied consent.
Q: But the defendant said, If that is so your honor, may we be allowed to amend our
answer so that we will now raise the defense of payment and prove it in court? Can the court
allow the defendant to amend his answer in the middle of the trial just to prove a defense that is
not raised?
A: The rule says YES, the court may allow the pleadings to be amended and shall do so with
liberality if the presentation of the merits of the action and the ends of substantial justice will be
subserved thereby.
That is why you can say that the power of the court in enforcing the Rules of Court is very
wide. For example, I am the judge and the defendant never raised the issue of payment in his
answer and he is now rising such defense. The plaintiffs lawyer will now object and alleged that
he cannot prove such defense for he never raised it in his answer. The judge sustained the
objection, You cannot prove a defense that is never raised in your answer. Q: Is my ruling
correct? A: YES because of Rule 9, Section 1 objections and defenses not raised in the answer
are deemed waived.
The defendant will now move to be allowed to amend the pleading so that I raised that
defense. The plaintiff will object to the amendment. The judge will ask the plaintiff, is the
obligation paid? NO. The defendant never paid it, answered the plaintiff. So if the defense is
false, why are you afraid? Anyway, he cannot prove it. So I will allow the amendment.
However, if the plaintiff will answer that the defendant has already paid the obligation but
that he never raised such matter in his answer. The plaintiff now will be in bad faith. So I will
allow the amendment.
So in other words, in any way my ruling is correct because I know how to apply the rule. So
the court will allow the amendment and shall do so with liberality so LIBERALITY should be
the rule on amendment. Section 5 is a rule more on equity. While, Rule 9, Section 1 is a rule of
law. Section 5 is a relaxation of that law on technicality.
The last sentence, the court may grant a continuance to enable the amendment to be
made. Continuance means postponement. It means, postponement of the case to allow the
defendant to amend his answer first.
Part II. SUPPLEMENTAL PLEADINGS
Sec. 6. Supplemental pleadings. - Upon motion of a party the court
may, upon reasonable notice and upon such terms as are just, permit
him to serve a supplemental pleading setting forth transactions,
occurrences or events which have happened since the date of the
pleading sought to be supplemented. The adverse party may plead
thereto within ten (10) days from notice of the order admitting the
supplemental pleading. (6a)
The second part of Rule 10 is the supplemental pleading, for the first part is the amended
pleadings.
Q: How do you distinguish an AMENDED pleading from a SUPPLEMENTAL pleading?
A: Of course, the similarity between the two is the existence of ORIGINAL PLEADING. The
following are the distinctions:
FIRST DISTINCTION: As to the allegations
An AMENDED pleading contains transactions, occurrences or events which already
happened at the time the original pleading was filed and could have been raised at the
original pleading, but which the pleader failed to raise in the original pleading because,
oversight or inadvertence or inexcusable negligence. If he wants to raise it, he must amend
the pleading. Whereas,
A SUPPLEMENTAL pleading contains transactions, occurrences or events which were
not in existence at the time the original pleading was filed but which only happened after
the filing of the original pleading and therefore, could not have been raised in the original
pleading.
That is the distinction emphasized in the New Rule Rule 11,
and 10:
Sections
Rule 11, Section 9. Counterclaim or cross-claim arising after

answer. A counterclaim or cross-claim which either matured or
was acquired by a party after serving his pleading may, with the
permission of the court, be presented as a counterclaim or crossclaim by supplemental pleading before Judgment.
Rule 11, Section 10. Omitted counterclaim or cross-claim.
When a pleader fails to set up a counterclaim or a cross-claim
through oversight, inadvertence, or excusable neglect, or when
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justice requires, he may, by leave of court, set up the

counterclaim or cross-claim by amendment before judgment.
These provisions emphasize the difference between an amended pleading and a
supplemental pleading how do you raise a counterclaim or cross-claim which was
not raised earlier? Is it by amending the pleading or by filing d supplemental pleading
? And that applies also to an answer where the defense or the transaction or the cause
of action supervened later.
SECOND DISTINCTION: As to effect
In an AMENDED pleading, the amended pleading supersedes the original pleading.
The original pleading is deemed erased. The amended substitutes the original. So from the
viewpoint of the law, the original pleading no longer exists. Whereas,
When a SUPPLEMENTAL pleading is filed, it does not supersede the original pleading.
In effect, there are now two (2) pleadings which stand side by side in the case the original
and the supplemental pleadings.
EXAMPLE: Mortz borrowed from Nanding P200,000 payable in 2 yearly
installments. Mortz failed to pay the first installment. Nanding filed a case. While
the case is pending, the other installment became due. Nanding will now file a
supplemental pleading and as a result, there will be two (2) complaints for
P100,000 each.
Rule in EVIDENCE: In an amended pleading, all your admissions and evidence no
longer exist because remember under the rules on Evidence, any admission that you
make in your pleading binds you under the doctrine of judicial admission where the
evidence need not be given - as if it is taken judicial notice of. The rule is, if a pleading
is amended and the amended pleading does not contain the admissions contained in
the original pleading, the judicial admission is now converted into an extra-judicial
admission and therefore the court will no longer take judicial notice of that.
But if I want to bring it to the attention of the court an admission which is not
found there (in the amended pleading), I have to formally offer in evidence the
original pleading. Normally, you do not offer in evidence a pleading because the court
takes judicial notice of everything stated in there. But if the original pleading is now
superseded, the original must be offered in evidence to prove an admission found in
the original but not anymore in the amended one. That principle in now found in
Section 8:
Section 8. Effect of amended pleadings. - An amended pleading
supersedes the pleading that it amends. However, admissions in
superseded pleadings may be received in evidence against the
pleader; and claims and defenses alleged therein not
incorporated in the amended pleading shall be deemed waived.
That is related to the rule in evidence that what need not be proved: judicial
notice, judicial admissions.
THIRD DISTINCTION: The filing of an AMENDED pleading could be a matter of right or

of judicial discretion under Sections 2 and 3; whereas
The filing of a SUPPLEMENTAL pleading is always a matter of judicial discretion under
Section 6. There is always leave of court.
Now, let us cite cases which are relevant to our topic on supplemental pleadings.
LEOBRERA vs. COURT OF APPEALS
170 SCRA 711
FACTS: Karen went to the bank and obtained a loan housing loan. A
promissory note was issued payable next year. After few months, Karen went
back to the bank and secured a second loan agricultural loan with another
promissory note.
When the first note became due, Karen failed to pay. So the bank sued
Karen on the first promissory note. When the case was still going on, the second
loan became due. So the bank sought to file a supplemental complaint against
Karen to collect the second loan. The maturity of the second loan happened after
the filing of the first pleading sought to be supplemented.
ISSUE: Is there a proper supplemental complaint?
HELD: NO. It is improper. Although the plaintiff and the defendant are the
same, there are two separate loans independent of each other as a matter of fact
the stipulations are not identical. It cannot be the subject matter of a
supplemental complaint. In this case, there are many types of loans secured in
different terms and conditions.
A supplemental complaint must based on matters arising subsequent to
the original complaint RELATED to the claim presented therein and founded on
the same cause of action. It cannot be used to try of another matter or a new
cause of action.
A good EXAMPLE for a supplemental complaint is when I borrow money from you for
P600,000 payable in three installments. First installment is on February for P200,000; second
installment is on April; and the last installment is on June for the last P200,000. There is no
acceleration clause. When the first installment fell due, I did not pay. So the plaintiff filed a case
against me to collect the first installment. In April, the case is still not yet decided. In fact the
second installment again fell due. Plaintiff moved to file for the supplemental pleading. While
the two cases are still pending, the last installment fell due and again there is failure to pay, so
there is another supplemental complaint.
Q: Is that proper?
A: YES because these are not two separate loans but one loan and the installments are
interrelated.
SUPERCLEAN SERVICES INC. vs. COURT OF APPEALS
258 SCRA 165 [1996]
dennisaranabriljdii
FACTS: Superclean Service Corp. is a company engaged in janitorial

services. A government corporation, the Home Development and Mutual Fund
(HDMF) sought a public bidding on who will be the company who shall provide
janitorial services to the offices of the HDMF for the year 1990.
Superclean won as it was the lowest bidder. It was suppose to start
providing the service for the year 1990. However, the HDMF refused to honor the
award. So, on November 8, 1989, Superclean filed in the RTC of Manila a
complaint for mandamus and certiorari against HDMF alleging that at public
bidding for janitorial services for the year 1990, it won as the lowest bidder but
HDMF refused without just cause, to award the contract to 'hem,
The problem was that 1990 already ended and the case was still on-going.
So it was already rendered moot and academic. What Superclean did was to file a
supplemental complaint in 1991 alleging that because the contract of service was
the furnishing of janitorial services for the year 1990, the delay in the decision of
the case has rendered the case moot and academic without Superclean obtaining
complete relief to redress the wrong committed against it by HDMF which relied
now consists of unrealized profits, exemplary damages and attorneys fees.
So, money claim na lang dahil moot and academic na eh. Instead of pursuing
its prayer for mandamus, Superclean sought the payment of damages to it.
ISSUE: Is the filing of supplemental complaint proper in order to seek a
different relief in view of developments rendering the original complaint
impossible of attainment?
HELD: The transaction, occurrence or event happening since the filing of
the pleading, which is sought to be supplemented, must be pleaded in aid of a
party's right of defense as the case may be. [Thats the purpose of the
supplemental pleading in aid of the partys cause of action or defense] But in
the case at bar, the supervening event is not invoked for that purpose but to
justify the new relief sought.
To begin with, what was alleged as a supervening event causing damage to
Superclean was the fact that the year for which the contract should have been
made had passed without the resolution of the case. The supervening event was
cited not to reinforce or aid the original demand, which was for the execution of
a contract in petitioner's favor, but to say that, precisely because of it,
petitioner's demand could no longer be enforced, thus justifying petitioner in
changing the relief sought to one for recovery of damages. This being the case,
petitioner's remedy was not to supplement, but rather to amend its complaint.
You are actually changing the relief so that the correct remedy is not a
supplemental complaint but an amended complaint.
Be that as it may, the so-called Supplemental Complaint filed by petitioner
should simply be treated as embodying amendments to the original complaint or
petitioner may be required to file an amended complaint. So, meaning, you call
it a supplemental complaint, the court will call it as an amended complaint or the
other alternative, require him to file an amended complaint.
75
Sec. 7. Filing of amended pleadings. - When any pleading is

amended, a new copy of the entire pleading, incorporating the
amendments, which shall be indicated by appropriate marks, shall be
filed. (7a)
When a party files an amended pleading, the amendments should be indicated by
appropriated marks, normally, the amended portion is underlined.
EXAMPLE: A party would to insert an entirely new paragraph. That paragraph would be
underlined. The purpose for such marking is for the court and the opposing party to immediately
see and detect the amendment. If no appropriated mark is provided the court and the lawyer has
to compare everything, paragraph by paragraph, sentence by sentence, line by line. Now, if there
are underlines, the court will just concentrate on the underlined portion. This is for convenience
for the parties and the court.
Section 8. Effect of amended pleadings. - An amended pleading
supersedes the pleading that it amends. However, admissions in
superseded pleadings may be received in evidence against the
pleader; and claims and defenses alleged therein not incorporated in
the amended pleading shall be deemed waived.
(Section 8: See discussion on Section 6 on distinctions between an amended and
supplemental pleading; second distinction)
The first sentence is one of the distinctions between an amended pleading and a
supplement pleading. From procedural viewpoint, the original pleading is already non-existent.
The court will no longer consider anything stated there.
EXAMPLE: You say something favorable to me. However, in his amended pleading, he
removes such statement, so that the court will not consider it anymore. Such statement is out of
the picture. Now, if you want to bring to the attention of the court the statement found in the
original pleading, you must offer the original pleading in evidence to consider it all over again.
This rule will be considered in the study of EVIDENCE.
dennisaranabriljdii
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NOTES ON CIVIL PROCEDURE

Q: Classify civil actions.

Sec. 3. Cases governed. These Rules shall govern the procedure to

CLASSIFICATION OF CIVIL ACTIONS

I. CIVIL ACTION; CLASSIFICATION AS TO NATURE

NOTES ON CIVIL PROCEDURE

NOTES ON CIVIL PROCEDURE

NOTES ON CIVIL PROCEDURE

A CIVIL ACTION requires the filing of formal pleadings, whereas

NOTES ON CIVIL PROCEDURE

The second sentence of Section 5 states that, If an additional defendant is impleaded in a

NOTES ON CIVIL PROCEDURE

HELD: Procedural rules are not intended to hamper litigants or complicate

NOTES ON CIVIL PROCEDURE

NOTES ON CIVIL PROCEDURE

A: There are two (2) elements:

the plaintiff must have a good cause of action; and

BAR QUESTION: Distinguish a CAUSE OF ACTION from a RIGHT OF ACTION.

Cause of action is the delict or wrong committed by the defendant, whereas

Right of action may be taken away by the running of statute of limitations, by

NOTES ON CIVIL PROCEDURE

NOTES ON CIVIL PROCEDURE

RULES IN DETERMINING THE SINGLENESS OF A CAUSE OF ACTION

NOTES ON CIVIL PROCEDURE

Q: How may causes of action be joined?

NOTES ON CIVIL PROCEDURE

NOTES ON CIVIL PROCEDURE

PROBLEM: Maceste encroached on my land in Tagum with an assessed value of P20,000.

PROBLEM: Maceste encroached on my land in Tagum with an assessed value of P1 million.

Real Parties in Interest

NOTES ON CIVIL PROCEDURE

Sec. 1. Who may be parties; plaintiff and defendant. - Only natural or

I. REAL PARTIES IN INTEREST

NOTES ON CIVIL PROCEDURE

II. REPRESENTATIVE PARTY

NOTES ON CIVIL PROCEDURE

ISSUE: Whether or not there was a valid judgment against the

There is a right to relief in favor of or against or against the parties joined in

NOTES ON CIVIL PROCEDURE

to promote convenience in trial;

NOTES ON CIVIL PROCEDURE

Q: Distinguish indispensable from necessary party.

NOTES ON CIVIL PROCEDURE

NOTES ON CIVIL PROCEDURE

The subject matter of the controversy is one of common or general interest to

BULIG-BULIG KITA KAMAGANAK ASSOCIATION, ET AL vs. SULPICIO

NOTES ON CIVIL PROCEDURE

is permissive joinder of parties because of common question of tact or law, but

through their self-appointed representatives would surely plead denial of due

It is important to note the following:

NOTES ON CIVIL PROCEDURE

Q: Can you sue somebody who is unknown?

RULE 110, SEC. 7. Name of the accused. The complaint or

NOTES ON CIVIL PROCEDURE

Correlate this with Rule 36, Section 6:

Class suit (Section 12, Rule 3);

Sec. 16. Death of party; duty of counsel. Whenever a party to a

NOTES ON CIVIL PROCEDURE

ISSUE: When there is failure to effectuate the substitution of heirs before

Q: And what is that procedure?

ACTIONS WHICH SURVIVE Is it a contractual money claim or non-contractual claim?

2a.) Actions which survive; CONTRACTUAL MONEY CLAIMS:

NOTES ON CIVIL PROCEDURE