7.

3 - Riano

1. The accused in a criminal case prohibited is not prohibited to interpose a counterclaim. But he
cannot file it in the same case. It must be the subject of a separate claim. There is no
prohibition. There is only a limitation.

2. There are 2 kinds of counterclaim under the rules. One is compulsory, and the other one is
permissive.

If there is no connection between the subject matter of the counterclaim and the subject matter
of the complaint, then it is a permissive counterclaim.

A permissive counter claim is an independent action. It need not be invoked in the same
complaint.

But if it is a compulsory counterclaim, it must be invoked in the same proceeding. Because, if it

is not invoked, it will be barred

On the other hand, a permissive counterclaim is not barred if not set up. Because it will be
deemed and considered as a separate action.

3. To be a compulsory counterclaim, it is not enough that the subject matter of the counterclaim
is connected to the subject matter of the complaint.

That counterclaim must also be within the jurisdiction of the court.

If it is not within the jurisdiction of the court, then it is permissive.

Here, the amount of 500,000 which was the counterclaim set up was not within the jurisdiction
of the MTC. It is permissive. An MTC cannot render judgment on an amount outside its
jurisdiction. Being permissive, it can be made subject of a separate complaint.

4. In the RTC, the amount of the counterclaim may be below its jurisdiction but such
counterclaim is still compulsory.

Once the RTC has jurisdiction over the main complaint, it has jurisdiction also over the
counterclaim regardless of the amount.
5. In the MTC, amount is important. It also has to have jurisdiction over the counterclaim, for it to
be considered as a counterclaim.

6. A counterclaim cannot include third persons over which the court has no jurisdiction.

If the counterclaim requires the presence of third persons who are outside the jurisdiction of
the court, then even if the cause of action of the counterclaim is within the jurisdiction of the
court (topics are related), then the counterclaim is still permissive.

7. The court has no jurisdiction over the subject matter of the counterclaim which is illegal
dismissal.

Hence, the counterclaim is not compulsory but permissive.

Although the dismissal has roots in the complaint (it has connection), the court has no
jurisdiction over illegal dismissal. It has to be filed not with the regular courts but with the labor
arbiter. Hence, it is not a compulsory counterclaim, but a permissive one.

8. There is a need to make a distinction between a permissive and compulsory counterclaim,

because of the waiver and the barring.

If it is a compulsory counterclaim it has to be invoked, otherwise if it barred because of Sec 2 of

Rule 9. But a permissive counterclaim need not be invoked since it can stand as an independent
action. It is not barred.

9. Although he has a very good ground for motion to dismiss, he should not file a motion to
dismiss.

His grounds for motion to dismiss must be used as affirmative defenses in his answer.

Then ask the court to conduct a preliminary hearing on his grounds for motion to dismiss as if it
was timely filed, even if he did not. (Sec 6, Rule 16)

Since it is a very good ground, the court will dismiss but here he already has his counterclaim.
The complaint will be dismissed but the counterclaim will remain. The dismissal of the complaint
will not affect the counterclaim.
10. There is a need to make a distinction between a permissive and compulsory counterclaim,
because of the waiver and the barring.

(1) If it is a compulsory counterclaim it has to be invoked, otherwise if it barred because of Sec 2

of Rule 9. But a permissive counterclaim need not be invoked since it can stand as an
independent action. It is not barred.

(2) If it is a permissive counterclaim he has to pay docket fees. With respect to compulsory
counterclaim, no docket fees is required

(3) A permissive counterclaim is an initiatory pleading; hence it must contain a certification

against forum shopping.

(4) If answer is not filed against a permissive counterclaim, the plaintiff could be the subject of
a motion to declare him in default (the plaintiff can be defaulted). In other words, a
permissive counterclaim, by jurisprudence, has to be answered, because it is an
independent and new complaint.

11. There is no need to ask for leave of court to file a counterclaim. Because the parties in the
counterclaim are already in court.

12. Third party claim. – It is a pleading wherein a person not party to the case is brought in to the
case to answer for whatever liability.

Leave of court is required. Reason: he is not a party to the case. Permission of the court has to
be asked to bring him in.

13. An answer to an answer is reply. No need for leave of court to file a reply. Reason is: the
plaintiff and the defendant are already in court.

14. Reply vs Answer

 (1) If the complaint has material allegations, the defendant has to answer them by specific
denial. If he does not, those material allegations are deemed admitted. They partake of
judicial admissions.

On the other hand, if the answer alleges new matters by way of defense, the plaintiff has no
obligation to file a reply. Even if no reply is filed, the allegations of new matters are deemed
denied or controverted. In other words, the plaintiff has no obligation to answer the matters
alleged in the answer.

15. A claim against a co-defendant is a cross claim. A cross claim has to be alleged otherwise it will
be barred.

16. When to advise a person to file a reply against an answer?

When an actionable document is presented as a basis of a defense, and the plaintiff wants to
deny the genuineness of the actionable document, then reply has to be filed with specific denial
and under oath. Specific denial is not enough. It must be under oath.

If one wants to deny the genuineness and due execution of an actionable document, a specific
denial is required and it must be under oath.

17. The normal rule is a specific denial is sufficient for a denial.

Except if what is involved is an actionable document. If the genuineness and due execution of
the actionable document is denied, then it has to be specifically denied and under oath.

If it is not under oath, then its genuineness is admitted, and that is a judicial admission. He
cannot later on prove that it is not genuine. Estoppel comes in.

18. In order to require an oath, it must be a specific denial of its genuineness and due execution. If
one is only contesting the contents of a document or its truth or falsity, then there is no need
to deny it under oath. Specific denial is enough.

But an oath is required when it is the genuineness of the document you are contesting.

In other words, an oath is not required every time a document is contested.

19. Allegations of usury in a complaint must be denied specifically and under oath.

But not all allegations of usury must be denied under oath; only allegations of usury in a
complaint. The use of the word complaint here is generic. It can be a counterclaim, a crossclaim
or a third party complaint.

20. Not all allegations of usury in a complaint must be denied specifically and under oath. Only
when such complaint is filed to recover usurious interest.

If it is filed for some other purpose, then it is sufficient to deny it specifically without an oath.

21. An allegation of usury in the answer as a defense need not be denied under oath. Reason: it is
not an allegation of usury in a complaint to recover usurious interest. It is a mere defense.

But if it was embodied in an answer with a counterclaim, to recover the usurious interest rate,
then it must be denied under oath

39:15

22.