BLAY v BANA
SECOND DIVISION
March 7, 2018
G.R. No. 232189
ALEX RAUL B. BLAY, Petitioner
vs.
CYNTHIA B. BANA, Respondent
DECISION
PERLAS-BERNABE, J.:
Assailed in this petition for review on certiorari1 are the Decision2 dated February 23, 2017 and
the Resolution3 dated June 6, 2017 of the Court of Appeals (CA) in CA-G.R. SP No. 146138,
which affirmed the Orders dated May 29, 20154 and March 3, 20165 of the Regional Trial Court
of Pasay City, Branch 109 (RTC) in Civil Case No. R-PSY-14-17714-CV that: (a) granted
petitioner Alex Raul B. Blay’s (petitioner) Motion to Withdraw; and (b) declared respondent
Cynthia B. Baña’s (respondent) Counterclaim for independent adjudication.
The Facts
On September 17, 2014, petitioner filed before the RTC a Petition for Declaration of Nullity of
Marriage,6 seeking that his marriage to respondent be declared null and void on account of his
psychological incapacity pursuant to Article 36 of the Family Code.7 Subsequently, respondent
filed her Answer with Compulsory Counterclaim8 dated December 5, 2014.
However, petitioner later lost interest over the case, and thus, filed a Motion to Withdraw 9 his
petition. In her comment/opposition10 thereto, respondent invoked Section 2, Rule 17 of the
Rules of Court (alternatively, Section 2, Rule 1 7), and prayed that her counterclaims be
declared as remaining for the court's independent adjudication. 11 In turn, petitioner filed his
reply,12 averring that respondent's counterclaims are barred from being prosecuted in the
same action due to her failure to file a manifestation therefor within fifteen (15) days from
notice of the Motion to Withdraw, which - according to petitioner - was required under the same
Rules of Court provision. In particular, petitioner alleged that respondent filed the required
manifestation only on March 30, 2015. However, respondent's counsel received a copy of
petitioner's Motion to Withdraw on March 11, 2015; hence, respondent had only until March 26,
2015 to manifest before the trial court her desire to prosecute her counterclaims in the same
action.13
The RTC Ruling
In an Order14 dated May 29, 2015, the RTC granted petitioner’s Motion to Withdraw
petition.15 Further, it declared respondent's counterclaim "as remaining for independent
adjudication" and as such, gave petitioner fifteen (15) days to file his answer thereto.16
Dissatisfied, petitioner filed a motion for reconsideration, 17 which was denied in an
Order18 dated March 3, 2016. Thus, he elevated the matter to the CA via a petition
for certiorari, 19 praying that the RTC Orders be set aside to the extent that they allowed the
counterclaim to remain for independent adjudication before the same trial court.20
The CA Ruling
In a Decision21 dated February 23, 2017, the CA dismissed the petition for lack of merit. 22 It
found no grave abuse of discretion on the part of the RTC, holding that under Section 2, Rule
17 of the Rules of Court, if a counterclaim has been filed by the defendant before the service
upon him of the petitioner’s motion for dismissal, the dismissal shall be limited to the
complaint.23
Aggrieved, petitioner moved for reconsideration, 24 which was denied in a Resolution25 dated
June 6, 2017; hence, this petition.
The Issue Before the Court
The issue for the Court's resolution is whether or not the CA erred in upholding the RTC
Orders declaring respondent's counterclaim for independent adjudication before the same trial
court.
The Court’s Ruling
The petition is meritorious.
Section 2, Rule 17 of the Rules of Court provides for the procedure relative to counterclaims in
the event that a complaint is dismissed by the court at the plaintiffs instance, viz. :
Section 2. Dismissal upon motion of plaintiff. - Except as provided in the
preceding section, a complaint shall not be dismissed at the plaintiffs
instance save upon approval of the court and upon such terms and
conditions as the court deems proper. If a counterclaim has been pleaded
by a defendant prior to the service upon him of the plaintiff's motion
for dismissal, the dismissal shall be limited to the complaint. The
 dismissal shall be without prejudice to the right of the defendant to
prosecute his counterclaim in a separate action unless within fifteen
(15) days from notice of the motion he manifests his preference to
have his counterclaim resolved in the same action. Unless otherwise
specified in the order, a dismissal under this paragraph shall be without
prejudice. A class suit shall not be dismissed or compromised without the
approval of the court.1âwphi1
As per the second sentence of the provision, if a counterclaim has been pleaded by the
defendant prior to the service upon him of the plaintiff's motion for the dismissal - as in this
case - the rule is that the dismissal shall be limited to the complaint. Commentaries on the
subject elucidate that "[i]nstead of an ‘action’ shall not be dismissed, the present rule uses the
term ‘complaint’. A dismissal of an action is different from a mere dismissal of the
complaint. For this reason, since only the complaint and not the action is dismissed, the
defendant inspite of said dismissal may still prosecute his counterclaim in the same acton."26
However, as stated in the third sentence of Section 2, Rule 17, if the defendant desires to
prosecute his counterclaim in the same action, he is required to file a manifestation within
fifteen (15) days from notice of the motion. Otherwise, his counterclaim may be prosecuted in a
separate action. As explained by renowned remedial law expert, former Associate Justice
Florenz D. Regalado, in his treatise on the matter:
Under this revised section, where the plaintiff moves for the dismissal of the
complaint to which a counterclaim has been interpose, the dismissal shall be
limited to the complaint. Such dismissal shall be without prejudice to the
right of the defendant to either prosecute his counterclaim in a separate
action or to have the same resolved in the same action. Should he opt for
the first alternative, the court should render the corresponding order
granting and reserving his right to prosecute his claim in a separate
complaint. Should he choose to have his counterclaim disposed of in
the same action wherein the complaint had been dismissed, he must
manifest within 15 days from notice to him of plaintiff's motion to
dismiss. x x x27
In this case, the CA confined the application of Section 2, Rule 17 to that portion of its second
sentence which states that the "dismissal shall be limited to the complaint." Evidently, the CA
ignored the same provision's third sentence, which provides for the alternatives available to the
defendant who interposes a counterclaim prior to the service upon him of the plaintiff's motion
for dismissal. As may be clearly inferred therefrom, should the defendant desire to prosecute
his counterclaim, he is required to manifest his preference therefor within fifteen (15) days from
notice of the plaintiff's motion to dismiss. Failing in which, the counterclaim may be prosecuted
only in a separate action.
The rationale behind this rule is not difficult to discern: the passing of the fifteen (15)-day
period triggers the finality of the court's dismissal of the complaint and hence, bars the conduct
of further proceedings, i.e., the prosecution of respondent's counterclaim, in the same action.
Thus, in order to obviate this finality, the defendant is required to file the required manifestation
within the aforesaid period; otherwise, the counterclaim may be prosecuted only in a separate
action.
It is hornbook doctrine in statutory construction that "[t]he whole and every part of the statute
must be considered in fixing the meaning of any of its parts and in order to produce a
harmonious whole. A statute must be so construed as to harmonize and give effect to all its
provisions whenever possible. In short, every meaning to be given to each word or phrase
must be ascertained from the context of the body of the statute since a word or phrase in a
statute is always used in association with other words or phrases and its meaning may be
modified or restricted by the latter."28
By narrowly reading Section 2, Rule 1 7 of the Rules of Court, the CA clearly violated the
foregoing principle and in so doing, erroneously sustained the assailed RTC Orders declaring
respondent’s counterclaim "as remaining for independent adjudication" despite the latter's
failure to file the required manifestation within the prescribed fifteen (15)-day period. As
petitioner aptly points out:
[I]f the intention of the framers of the Rules of Court is a blanket dismissal of
the complaint ALONE if a counterclaim has been pleaded prior to the service
of the notice of dismissal then there is NO EVIDENT PURPOSE for the third
(3rd) sentence of Sec. 2, Rule 17.
x x x x29
[I]t is clearly an ABSURD conclusion if the said provision will direct the
defendant to manifest within fifteen (15) days from receipt of the notice of
dismissal his preference to prosecute his counterclaim in the SAME
ACTION when the same AUTOMATICALLY REMAINS. If the automatic
survival of the counterclaim and the death of the complaint as being ruled by
the Court of Appeals in its questioned Decision is indeed true, then the third
sentence should have required defendant to manifest that he will prosecute
his counterclaim in a SEPARATE [and not - as the provision reads - in the
same] ACTION.30 (Emphases and underscoring in the original)
Petitioner's observations are logically on point. Consequently, the CA rulings,
which affirmed the patently erroneous R TC Orders, must be reversed. As it
should be, the RTC should have only granted petitioner's Motion to
Withdraw and hence, dismissed his Petition for Declaration of Nullity of
Marriage, without prejudice to, among others, the prosecution of
respondent's counterclaim in a separate action.
WHEREFORE, the petition is GRANTED. The Decision dated February 23, 2017 and the
Resolution dated June 6, 2017 of the Court of Appeals in CA-G.R. SP No. 146138 are
hereby REVERSED and SET ASIDE. A new one is ENTERED solely granting petitioner Alex
Raul B. Blay’s Motion to Withdraw his Petition for Declaration of Nullity of Marriage in Civil
Case No. R-PSY-14-17714-CV. The aforesaid dismissal is, among others, without prejudice to
the prosecution of respondent Cynthia B. Baña's counterclaim in a separate action.

SO ORDERED.
LIM TECK CHUAN v UY Register of Deeds of Lapu-lapu City to issue a new owner’s duplicate copy of TCT No. T-0500.

THIRD DIVISION However, the aforesaid order was recalled and nullified on September 3, 19967 on
the ground that the petitioner filed an Opposition and/or Motion for Reconsideration with
Manifestation for Special Appearance8 dated August 22, 1996 alleging that he is one of the six
G.R. No. 155701, March 11, 2015
legitimate descendants of Antonio; and that the original owner’s copy of TCT No. T-0500 was
not lost and has always been in his custody. The court further directed the petitioner to
LIM TECK CHUAN, Petitioner, v. SERAFIN UY AND LEOPOLDA CECILIO, LIM SING deposit the said owner’s copy of TCT No. T-0500 with said court.
CHAN @ HENRY LIM, Respondents.
In the meantime, on August 2, 1996, Lim Sing Chan alias Henry Lim (Henry) executed
DECISION an Affidavit of Sole Adjudication/Settlement of the Estate of Antonio Lim Tanhu with Deed of
Sale9 (Affidavit of Self-Adjudication) claiming that he is the only surviving heir of Antonio. In
REYES, J.: the same document, Henry sold Lot 5357 to Leopolda in the amount of P500,000.00.

With this turn of events, Serafin filed on July 25, 1997 a Complaint 10 for quieting of title,
Before this Court is a petition for review on certiorari1 under Rule 45 filed by Lim Teck Chuan
surrender of owner’s copy of certificate of title, declaration of nullity of affidavit of
(petitioner) assailing the Orders dated April 25,
adjudication and sale, annulment of tax declaration, and other reliefs with a prayer for
20022 and October 21, 20023 of the Regional Trial Court (RTC) of Lapu-lapu City,
preliminary injunction before the RTC, docketed as Civil Case No. 4786-L. Impleaded as
Branch 27, in Civil Case No. 4786-L, which dismissed the case upon a joint motion of
defendants were Leopolda, Henry, and the herein petitioner.
respondents Serafin Uy (Serafin) and Leopolda Cecilio (Leopolda) despite an opposition and
manifestation of the petitioner to have his counterclaim prosecuted in the same action, and
Leopolda filed her Answer11 (with counterclaim, and cross-claim against Henry), asserting that
denied the petitioner’s motion for reconsideration for being barren of merit, respectively.
she was the buyer in good faith and for value of Lot 5357. She alleged that the said property
was never encumbered to any person during the lifetime of Antonio; that the deed of sale in
The antecedent facts are as follows:
favor of Spouses Cabansag was simulated and spurious; and that the said document was
never registered with the proper government agency, nor was it ever annotated on the
The subject matter of the present controversy is a piece of land known as Lot 5357 with an
certificate of title covering the said property. She claimed
area of 33,610 square meters, covered by Transfer Certificate of Title (TCT) No. T-0500,
that the lot in question was sold to her as evidenced by the Affidavit of
situated in Barrio Agus, Lapu-lapu City, Cebu, owned and registered under the name of
Self-Adjudication executed by Henry; that she caused the issuance of a new tax declaration
Antonio Lim Tanhu (Antonio), married to Dy Ochay.
over the said property in her name; that since then, she has been in open, actual and material
possession of the subject lot in the concept of an owner.
Lot 5357 was sold by Antonio to the spouses Francisco Cabansag (Francisco) and Estrella
Cabansag (Spouses Cabansag) as evidenced by a Deed of Sale executed on January 8,
For his part, the petitioner averred in his Answer12 (with counterclaim, and cross-claims
1966. Apparently, Francisco failed to transfer the title of the property to their names because
against Leopolda and Henry), that Lot 5357 was never transferred nor encumbered to any
of his work and frequent travels abroad.4cralawred
person during Antonio’s lifetime. The deed of sale in favor of Spouses Cabansag was
simulated and spurious, and was intended to defraud the estate of Antonio. Furthermore, the
In 1988, Spouses Cabansag sold the lot to Serafin, as evidenced by a Deed of Sale dated April
petitioner questioned Henry’s claim that he was an heir of Antonio, much less the only
8, 1988. To pave the way for the transfer of title to Serafin’s name, Spouses Cabansag
surviving heir of the latter. Corollarily, the petitioner questioned the validity of Henry’s Affidavit
attempted to have the same transferred under their names first. However, Francisco failed to
of Self-Adjudication and Leopolda’s claim of title to the subject property.
do so as he lost the owner’s copy of TCT No. T-0500 together with other documents pertaining
to the sale of the subject lot. This prompted Serafin to exert efforts to secure copies of the lost
On November 11, 1997, Leopolda filed her Answer 13 to the petitioner’s cross-claim. She
documents himself. On May 15, 1996, Serafin filed a petition before the RTC, docketed as
basically reiterated her allegations raised in her Answer to Serafin’s complaint.
Cadastral Case No. 21 praying for the issuance of a new owner’s duplicate TCT in his name,
thereby cancelling TCT No. T-0500 in the name of Antonio.5cralawred
Henry did not file an answer to any of the claims against him.
Serafin’s petition for the issuance of a new owner’s copy of TCT No. T-0500 was raffled to the
On December 22, 1998, the pre-trial conference14 was conducted where the parties agreed to
RTC of Lapu-lapu City, Branch 27, then sitting as a cadastral court (Cadastral Court). After
the following stipulation of facts:chanRoblesvirtualLawlibrary
due notice and hearing, the Cadastral Court issued an Order6 on June 14, 1996 directing the
 [T]hat Antonio Lim Tanhu was the registered owner of Lot 5357 of the
Cadastral Survey of Opon located in Lapu-lapu City[;] that Antonio Lim
Tanhu died on April 13, 1991[;] that Antonio Lim Tanhu was succeeded
upon his death by his six children, namely, the defendant Lim Teck Chuan,
Lim Sing Tai, Helen Lim, Lenesita Lim, Warlito Lim and Michael Lim Tan
Ho[;] that the defendant Lim Sing Chan is actually a fictitious person[;] that
there exists an ancient document denominated as Deed of Absolute Sale of
Lot 5357 executed on January 8, 1966 by Antonio Lim Tanhu in favor of the
spouses Francisco Cabansag and Estrella M. Cabansag (Exhibit A)[;] that
there also exists a document denominated as Deed of Absolute Sale
(Exhibit B) of Lot 5357 executed on April 8, 1988 by the spouses Francisco
Cabansag and Estrella M. Cabansag in favor of the plaintiff[;] and that there
exists, too, a document denominated as Affidavit of [Sale]
Adjudication/Settlement of Estate of Antonio Lim Tanhu with Deed of Sale
executed on May 2, 1996 by a certain Lim Sing Chan (Exhibit 1-Cecilio). x x
x.15cralawlawlibrary
The parties also agreed to the following issues:chanRoblesvirtualLawlibrary
1. Whether or not the plaintiff has valid causes of action for quieting of
title, declaration of nullity of documents of sale and tax declarations,
reconveyance of title and damages against the defendants[;]
2. Whether or not the defendants Leopolda Cecilio and Lim Teck
Chuan have valid counterclaims against the plaintiff; and
3. Whether or not the defendant Lim Teck Chuan has a valid
cross-claim against the defendant Leopolda Cecilio.16
cralawlawlibrary
Thereafter, the pre-trial order was amended such that it should not be considered as
established and stipulated facts that Henry is a fictitious person and that the Deed of Sale of
Lot 5357 purportedly executed by Antonio on January 8, 1966 is genuine and authentic since
there were actually no admissions made on these circumstances.17cralawred
In the same Order18 dated July 17, 1999, the RTC denied Serafin’s motion for summary
judgment19 because under the circumstances, there were actually genuine issues of fact to be
resolved and passed upon by the court.
Eventually, the RTC set the initial trial of the case on March 28, 2001. 20 However, it was
postponed upon motion of Leopolda’s counsel and upon the manifestation of Serafin’s counsel
that there was an on-going negotiation for an amicable settlement. For his part, the
petitioner’s counsel manifested that the petitioner was not involved in any negotiation for
amicable settlement. The scheduled hearing was reset to July 11, 200121 and later to
November 12, 2001.22cralawred
On September 20, 2001, Serafin and Leopolda submitted a Joint Motion to Dismiss.23 They
averred that:chanRoblesvirtualLawlibrary
1. That the case at [bench] is filed by the Plaintiff Serafin Uy against
the defendants for “quieting of title, surrender of owner of certificate
of title, declaration of nullity of affidavit of adjudication and sale
annulment of tax declaration, and other reliefs consistent with law,
justice and equity[?];ChanRoblesVirtualawlibrary
2. That in the case at bench, Plaintiff Serafin Uy seeks the quieting of
title on his right over Lot 5357 of the Cadastral Survey of Opon
situated at Barangay Agus, Lapu-lapu City, in view of the affidavit
of adjudication and Sale dated August 2, 1996 (Annex “F”) of the
Complaint, and Tax Decl. No. 01532 issued in the name of
Leopolda Cecilio both of which documents affected Lot 5357
(Annex G to the Complaint);ChanRoblesVirtualawlibrary
3. That Plaintiff Serafin Uy and Defendant Leopolda Cecilio have
amicably settled their differences in the case at bench and Def.
Leopolda Cecilio has agreed to waive her counterclaim for
damages in the instant case;ChanRoblesVirtualawlibrary
4. That Plaintiff Serafin Uy has already secured a certificate of title to
Lot No. 5357 in his name dated July 26, 2001, and has also agreed
for the cancellation of the same, and for issuance of a new one,
over said Lot 5357, in their common
names;ChanRoblesVirtualawlibrary
5. That whatever claim defendant Lim Teck Chuan may have on said
Lot No. 5357, the same may be ventilated by said defendant in an
appropriate independent action that he may initiate and file[.]
PRAYER
WHEREFORE, this Honorable Court is most respectfully prayed and humbly
implored to dismiss the Complaint and the respective counterclaims of the
defendants in the case at bench.24cralawlawlibrary

On October 4, 2001, the petitioner filed his Opposition/Comment25 praying for the denial of the
Joint Motion to Dismiss on the ground of bad faith, and to prohibit Serafin and Leopolda from
undertaking any further transaction involving the subject lot. The pertinent portion of his
opposition reads as follows:chanRoblesvirtualLawlibrary
1. That the [petitioner] opposes the ‘Joint Motion to Dismiss’ filed by
[Serafin] and [Leopolda] on the grounds:
1.1 that there [is] BAD FAITH on the part of [Serafin] and [Leopolda];
That the [petitioner] was not involved in any amicable settlements between [Serafin]
1.2. and [Leopolda] because both [Serafin] and [Leopolda] connived to MISLEAD this
Honorable Court and to DEFRAUD the estate of [Antonio];
That the [petitioner] has valid counterclaims against [Serafin] for moral damages of
P 5,000,000[.00]; exemplary damages of P 1,200,000[.00]; and Attorney’s fees of P
1.3. 50,000[.00]; on the ground that [Serafin] maliciously and deliberately presented to
this Honorable Court the FALSIFIED AND FICTITIOUS ‘deed of sale’
PURPORTEDLY executed by [Antonio] in favor of [Francisco];
That the [petitioner] has valid cross[-]claims against Cross-defendants Lim Sing
Chan alias Henry Lim whose real name is Henry Lim Ormoc, and [Leopolda] for
moral damages of P 5,000,000[.00] each, attorney’s fees of P 50,000[.00] each,
and exemplary damages of P 1,000,000[.00] for [Henry] and P 1,600,000[.00] for
1.4.
[Leopolda] because [Henry] and [Leopolda] connived with each other to defraud the
estate of [Antonio] on the ground that [Henry] MISREPRESENTED himself as an
heir of [Antonio] while [Leopolda] has KNOWLEDGE of such
MISREPRESENTATION;
That the [petitioner] manifest[s] to this Honorable Court of his preference that the
1.5.
above-counterclaims and cross-claims be resolved in the present case[.]26
cralawlawlibrary
The petitioner further averred that the transfer of Antonio’s title under TCT No. T-0500 in the
name of Serafin is irregular and illegal since the true owner’s copy of TCT No. T-0500
remained in his possession.
Henry continued to remain silent.
On October 10, 2001, Serafin filed his Reply27 to the comment/opposition of the petitioner. He
substantially averred that:
1. With the end in view of registering Lot 5357 in his name, he instituted the instant case
due to the existence of certain documents affecting his title thereto, namely:
Henry’s Affidavit of Self-Adjudication with Deed of Sale dated August 2, 1996
naming Leopolda as the buyer, and Tax Declaration No. 01532 issued in the name
of the latter;ChanRoblesVirtualawlibrary
2. Under his Affidavit of Self-Adjudication, Henry already transferred whatever right
and interest he had on the subject lot to Leopolda. On the other hand, by reason of
the amicable settlement between him (Serafin) and Leopolda, the latter waived and
abandoned all her rights to Lot 5357. Ergo, as far as Leopolda is concerned, her
waiver negated all the legal consequences of Tax Declaration No. 01532 and Henry’s
Affidavit of Self-Adjudication. Since the same were the very documents that cast
clouds on his (Serafin) title over Lot 5357, his main causes of action in the case at
bench had become moot and academic as his title to the said lot had been
quieted;ChanRoblesVirtualawlibrary
3. The petitioner was impleaded because of the following points: a) he alleged that he is
one of the heirs of the late Antonio; b) he contested the claim of Henry that the latter
is the only surviving heir of said decedent, and prayed upon the court to declare
Henry as an impostor; and c) he challenged the genuineness and due execution of
the deed of absolute sale between Antonio and Spouses
Cabansag;ChanRoblesVirtualawlibrary
4. Aside from his claim for damages, the petitioner’s counterclaim sought the
nullification of the Deed of Absolute Sale dated January 8, 1966 between Antonio and
Spouses Cabansag which required the impleading of persons who were not parties in
the case. These persons included Spouses Cabansag who was indispensable party
to any action for the annulment of the deed which was executed in their favor.
However, to implead the said persons, there was a need to summon them so that the
court can acquire jurisdiction over them - and in order that they can be summoned,
there was a need for the petitioner to file a formal complaint against
them;ChanRoblesVirtualawlibrary
5. Moreover, the cross-claim of the petitioner against Henry can also be resolved in a
separate action for the declaration of the true heirs of Antonio wherein all the heirs of
the latter will be impleaded, and where the petitioner can prove that he was indeed
one of the heirs of said decedent – especially so that there is yet no judicial or
extra-judicial declaration as to who were Antonio’s heirs;ChanRoblesVirtualawlibrary
6. The dismissal of the case will not affect the rights of the petitioner because whatever
claim he had on the subject lot and against any party may be ventilated in an
appropriate and separate action.
On November 6, 2001, the petitioner, through counsel, filed his Motion to Implead
Indispensable Parties and Supplemental Opposition to Joint Motion to Dismiss.28 Invoking
Section 1129 of Rule 3 of the Rules of Court, the petitioner averred that there is a need to
implead Spouses Cabansag in order that a final determination of all the issues could be had in
the case.
Acting on the Joint Motion to Dismiss, the RTC issued the assailed Order30 dated April 25,
2002 granting the same and denying the petitioner’s motion to implead Spouses
Cabansag. The order is quoted as follows:chanRoblesvirtualLawlibrary
Going over the arguments of the parties, the Court finds the arguments of
the movants as tenable. For what is the use of so continuously litigating this
case when [Serafin] admits and confirms that the principal reliefs he prayed
for have already been met or satisfied as his title to the property in question
has already been quieted with him having “already secured a certificate of
title to Lot No. 5357 in his name dated July 26, 2001, and has also agreed
for the cancellation of the same, and for the issuance of a new one, over
said Lot 5357, in their common names.” In fact, even without said reliefs
having been met or satisfied, nobody, not even the courts of justice, can
compel a party-litigant in a civil action like [Serafin] to so continuously litigate
his case if he does not want to anymore.
Finding therefore, the subject motion to dismiss to be proper and in order,
this case is ordered dismissed so with the respective counterclaims of the
defendants. Considering however, that [the petitioner] is not a party and
even opposed the subject motion to dismiss, the dismissal of his
counterclaims and cross-claim is without prejudice to give him his day in
court. And with this pronouncement of dismissal, the motion to implead
indispensable parties of [the petitioner] becomes moot and academic and
therefore is denied.31cralawlawlibrary
On May 30, 2002, the petitioner filed a Motion for Reconsideration32 which was denied in the
Order33 dated October 21, 2002.
Aggrieved, the petitioner went up to this Court via a petition for review on certiorari under Rule
45 raising the lone assignment of error that:chanRoblesvirtualLawlibrary
THE LOWER COURT ERRED IN DISMISSING CIVIL CASE 4786-L UPON
A JOINT MOTION TO DISMISS FILED BY THE RESPONDENTS WHO
ARE PLAINTIFF AND ONE OF THE DEFENDANTS, RESPECTIVELY, IN
THE AFOREMENTIONED CASE DESPITE THE OPPOSITION BY HEREIN
PETITIONER AND THE MANIFESTATION OF THE LATTER OF HIS
PREFERENCE MADE WITHIN FIFTEEN (15) DAYS FROM THE JOINT
MOTION TO DISMISS, TO HAVE HIS COUNTERCLAIM, AS WELL AS HIS
CROSS-CLAIM, PROSECUTED IN THE SAME ACTION, IN
ACCORDANCE WITH SECTION 2, RULE 17 OF THE 1997 RULES OF
CIVIL PROCEDURE.34cralawlawlibrary
The petitioner faults the RTC for dismissing the case in its entirety in spite of his counterclaim
and cross-claim. He asserts that within 15 days from notice of the filing of the joint motion to
dismiss, he filed his opposition thereto and expressed his preference to have
his counterclaim and cross-claim be resolved in the same action. Therefore, pursuant to the
provisions of Section 2, Rule 17 of the Rules of Court, his timely expression of such preference
should be enough for the trial court not to dismiss the case in its entirety, and to limit its action
to the dismissal of the complaint.
Preliminarily, the respondents question the petitioner’s recourse to this Court in filing the
instant petition alleging that no appeal may be taken from an order of the RTC dismissing an
action without prejudice.35 Nonetheless, the Rules of Court do not prohibit any of the parties
from filing a Rule 45 petition with this Court in case only questions of law are raised or
involved.36 In Bukidnon Doctors’ Hospital, Inc. v. Metropolitan Bank & Trust Co.,37 the Court
explained that:chanRoblesvirtualLawlibrary
Section 2(c), Rule 41 of the Rules of Court categorically provides that in all
cases where only questions of law are raised, the appeal from a decision or
order of the Regional Trial Court shall be to the Supreme Court by petition
for review on certiorari in accordance with Rule 45. Section 2(c) of Rule 41
of the Rules of Court reads:
SEC. 2. Modes of appeal. –
(a) Ordinary appeal. – The appeal to the Court of Appeals
in cases decided by the Regional Trial Court in the
exercise of its original jurisdiction shall be taken by filing a
notice of appeal with the court which rendered the
judgment or final order appealed from and serving a copy
thereof upon the adverse party. No record on appeal
shall be required except in special proceedings and other
cases of multiple or separate appeals where the law or
these Rules so require. In such cases, the record on
appeal shall be filed and served in like manner.
(b) Petition for review. – The appeal to the Court of
Appeals in cases decided by the Regional Trial Court in
the exercise of its appellate jurisdiction shall be by petition
for review in accordance with Rule 42.
(c) Appeal by certiorari. – In all cases where only
questions of law are raised or involved, the appeal shall
be to the Supreme Court by petition for review on
certiorari in accordance with Rule 45.cralawlawlibrary
Section 1 of Rule 45 provides:
 SECTION 1. Filing of petition with Supreme Court. – A
party desiring to appeal by certiorari from a judgment or
final order or resolution of the Court of Appeals, the
Sandiganbayan, the Regional Trial Court or other courts
whenever authorized by law, may file with the Supreme
Court a verified petition for review on certiorari. The
petition shall raise only questions of law which must be
distinctly set forth.
A question of law exists when the doubt or controversy concerns the correct
application of law or jurisprudence to a certain set of facts; or when the issue
does not call for an examination of the probative value of the evidence
presented, the truth or falsehood of facts being admitted. A question of fact
exists when the doubt or difference arises as to the truth or falsehood of
facts or when the query invites calibration of the whole evidence considering
mainly the credibility of the witnesses, the existence and relevancy of
specific surrounding circumstances, as well as their relation to each other
and to the whole, and the probability of the situation.38 (Citation
omitted)cralawlawlibrary
Considering that the issue in the instant case is clearly one of law as it calls for the correct
application of the Rules of Court, the petitioner’s direct resort to this Court is proper.
The Court now looks into the propriety of the order of the RTC in dismissing the
case. Needless to state, the Court is again confronted with the issue of whether the dismissal
of the complaint, specifically upon motion of the plaintiff under Section 2 of Rule 17 of the
Rules of Court also calls for the dismissal of the defendant’s counterclaim, as in the case at bar.
Rule 17 of the Rules of Civil Procedure provides the following:chanRoblesvirtualLawlibrary
SECTION 1. Dismissal upon notice by plaintiff. – A complaint may be
dismissed by the plaintiff by filing a notice of dismissal at any time before
service of the answer or of a motion for summary judgment. Upon such
notice being filed, the court shall issue an order confirming the
dismissal. Unless otherwise stated in the notice, the dismissal is without
prejudice, except that a notice operates as an adjudication upon the merits
when filed by a plaintiff who has once dismissed in a competent court an
action based on or including the same claim.
SECTION 2. Dismissal upon motion of plaintiff. – Except as provided in the
preceding section, a complaint shall not be dismissed at the plaintiff’s
instance save upon approval of the court and upon such terms and
conditions as the court deems proper. If a counterclaim has been pleaded
by a defendant prior to the service upon him of the plaintiff’s motion for
dismissal, the dismissal shall be limited to the complaint. The dismissal
shall be without prejudice to the right of the defendant to prosecute his
counterclaim in a separate action unless within fifteen (15) days from notice
of the motion he manifests his preference to have his counterclaim resolved
in the same action. Unless otherwise specified in the order, a dismissal
under this paragraph shall be without prejudice. A class suit shall not be
dismissed or compromised without the approval of the court.
SECTION 3. Dismissal due to fault of plaintiff. – If, for no justifiable cause,
the plaintiff fails to appear on the date of the presentation of his evidence in
chief on the complaint, or to prosecute his action for an unreasonable length
of time, or to comply with these Rules or any order of the court, the
complaint may be dismissed upon motion of the defendant or upon the
court’s own motion, without prejudice to the right of the defendant to
prosecute his counterclaim in the same or in a separate action. This
dismissal shall have the effect of an adjudication upon the merits, unless
otherwise declared by the court.
SECTION 4. Dismissal of counterclaim, cross-claim, or third-party
complaint. – The provisions of this Rule shall apply to the dismissal of any
counterclaim, cross-claim, or third-party complaint. A voluntary dismissal
by the claimant by notice as in Section 1 of this Rule, shall be made before a
responsive pleading or a motion for summary judgment is served or, if there
is none, before the introduction of evidence at the trial or
hearing.cralawlawlibrary
The RTC granted the Joint Motion to Dismiss upon the behest of Serafin, the plaintiff therein
on the main ground that the case had become moot and academic since his title to Lot 5357
had been allegedly quieted and the reliefs prayed for were obtained. In the Order dated
October 21, 2002 denying the motion for reconsideration, the RTC elucidated
that:chanRoblesvirtualLawlibrary
The Court in issuing the dismissal order dated April 25, 2002 had already
made its position on the matter very clearly such that it finds no reason to
disturb the subject order. As clarified, a party-litigant in a civil action like the
plaintiff herein, cannot be compelled to so continuously litigate his case if he
does not want to anymore as was obtaining in this case. More so that the
principal reliefs prayed for in the complaint had already been served as was
so admitted by the plaintiff. Being so, this Court finds it repugnant to go on
with the hearing of movant’s-defendant’s counterclaim for what is to be
countered by the movant when the claim of the plaintiff, at his own instance,
had already been dismissed it having been served and satisfied as
aforestated. And this is so because what is contemplated under the Rules
authorizing the hearing of defendant’s counterclaim is when the dismissal is
not at the instance of the plaintiff.39cralawlawlibrary
As can be gleaned from the assailed orders, the RTC erred when it dismissed the case when
the present rules state that the dismissal shall be limited only to the complaint. A dismissal of
an action is different from a mere dismissal of the complaint. For this reason, since only the
complaint and not the action is dismissed, the defendant in spite of said dismissal may still
prosecute his counterclaim in the same action.40 The case of Pinga v. Heirs of German
Santiago41 is quite instructive which this Court finds worth reiterating. In Pinga, the Court
clearly stated that the dismissal of the complaint does not necessarily result to the dismissal of
the counterclaim, abandoning the rulings in Metals Engineering Resources Corporation v.
Court of Appeals,42International Container Terminal Services, Inc. v. Court of
Appeals,43 and BA Finance Corporation v. Co.44 The Court held
that:chanRoblesvirtualLawlibrary
At present, even Section 2, concerning dismissals on motion of the plaintiff,
now recognizes the right of the defendant to prosecute the counterclaim
either in the same or separate action notwithstanding the dismissal of the
complaint, and without regard as to the permissive or compulsory nature of
the counterclaim.
In his commentaries on the 1997 Rules of Civil Procedure, Justice Regalado
expounds on the effects of the amendments to Section 2 and 3 of Rule 17:
2. Under this revised section 2, where the plaintiff moves
for the dismissal of his complaint to which a counterclaim
has been interposed, the dismissal shall be limited to the
complaint. Such dismissal shall be without prejudice to the
right of the defendant to either prosecute his counterclaim
in a separate action or to have the same resolved in the
same action. Should he opt for the first alternative, the
court should render the corresponding order granting and
reserving his right to prosecute his claim in a separate
complaint. Should he choose to have his counterclaim
disposed of in the same action wherein the complaint had
been dismissed, he must manifest such preference to the
trial court within 15 days from notice to him of plaintiff’s
motion to dismiss. These alternative remedies of the
defendant are available to him regardless of
whether his counterclaim is compulsory or permiss
ive. x x x.45 (Italics in the original)
cralawlawlibrary
In the instant case, the petitioner’s preference to have his counterclaim (and cross-claims) be
prosecuted in the same action was timely manifested. The records show that Serafin and
Leopolda furnished the petitioner’s counsel with a copy of their Joint Motion to Dismiss by
posting it (via registered mail) on September 19, 2001.46 Said motion was filed in court the
following day.47 On October 4, 2001, the petitioner filed
his Opposition/Comment thereto.48 Copies of the said opposition were personally served upon
the opposing parties on the same date.49 In paragraph 1.550 of said opposition, the petitioner
expressed his preference to have his counterclaim and cross-claim prosecuted in the same
case, as he thus stated:chanRoblesvirtualLawlibrary
That the undersigned defendant manifest to this Honorable Court of his preference that
1.5
the above[ ]counterclaims and cross-claims be resolved in the present case.51
cralawlawlibrary
There are valid reasons why the petitioner vehemently objected to the dismissal of the case
upon the joint motion of Serafin and Leopolda and insisted to have his counterclaim
prosecuted in the same action.
Serafin instituted the instant case due to the existence of certain documents affecting his title,
namely: Henry’s Affidavit of Self-Adjudication with Deed of Sale which names Leopolda as the
buyer; and Tax Declaration No. 01532 which was issued in the name of the latter. In his
Affidavit of Self-Adjudication, Henry transferred whatever right and interest he had on the
subject lot to Leopolda. Subsequently, by reason of the amicable settlement between Serafin
and Leopolda, the latter waived and abandoned all her rights to Lot 5357.
On the other hand, the petitioner asserts that the subject property was never transferred nor
encumbered to any person during Antonio’s lifetime. He insists that the deed of sale in favor
of Spouses Cabansag is simulated and spurious, and was intended to defraud the estate of
Antonio. Further, he asserts that said Spouses Cabansag are mere creations of Serafin.
Forthwith, the foregoing contentions touch on the very merits of the case which this Court is
not prepared to rule upon for want of sufficient factual basis since this case was dismissed by
the RTC even before the parties were able to present their evidence on the
merits. Nonetheless, the records show that Serafin had been aware of the petitioner’s claim
over the property as descendants of Antonio and Dy Ochay even before the institution of this
case, which was why he impleaded the petitioner in this case. Then, the Joint Motion to
Dismiss was filed by Serafin and Leopolda on the ground that both parties were able to settle
their differences. It is rather intriguing that in said joint motion, it was alleged that Serafin was
already able to secure a certificate of title in his name dated July 26, 2001 and that both parties
agreed for its cancellation and have a title over said property issued in their common
names.52 Clearly, the petitioner was peremptorily left out of the picture. From the case’s
inception, the petitioner’s interests and that of his siblings over the subject property were
vigilantly defended as evidenced by the numerous and exchange of pleadings made by the
parties. It can not therefore be denied that the petitioner has certainly valid defenses and
enforceable claims against the respondents for being dragged into this case. Thus, the
petitioner’s manifestation of his preference to have his counterclaim prosecuted in the same
action is valid and in accordance with Section 2, Rule 17 of the Rules of Court.
WHEREFORE, premises considered, the petition is PARTIALLY GRANTED. The Orders
dated April 25, 2002 and October 21, 2002 of the Regional Trial Court of Lapu-lapu City,
Branch 27 in Civil Case No. 4786-L are MODIFIED in that the counterclaim of Lim Teck Chuan
as defendant in Civil Case No. 4786-L is REINSTATED. The Regional Trial Court been worth more than 380 million.8 It is also alleged that whilehe was unmarried, he had
is ORDERED to hear and decide Lim Teck Chuan’s counterclaim with dispatch. children from two women.9

SO ORDERED.cralawlawlibrary Ramon Ching alleged that he was the only child of Antonio Ching with his common-law wife,
Lucina Santos.10 She, however, disputed this. She maintains that even ifRamon Ching’s birth
certificate indicates that he was Antonio Ching’s illegitimate child, she and Antonio Ching
merely adopted him and treated him like their own.11

Joseph Cheng and Jaime Cheng, on the other hand, claim to be Antonio Ching’s illegitimate
children with his housemaid, Mercedes Igne.12 While Ramon Ching disputed this,13 both
Mercedes and Lucina have not.14

Lucina Santos alleged that when Antonio Ching fell ill sometime in 1996, he entrusted her with
CHING v CHENG the distribution of his estate to his heirs if something were to happen to him. She alleged that
she handed all the property titles and business documents to Ramon Ching for
SECOND DIVISION safekeeping.15 Fortunately, Antonio Ching recovered from illness and allegedly demanded that
Ramon Ching return all the titles to the properties and business documents. 16
G.R. No. 175507 October 8, 2014
On July 18, 1996, Antonio Ching was murdered.17 Ramon Ching allegedly induced Mercedes
RAMON CHING AND POWING PROPERTIES, INC., Petitioners, Igne and her children, Joseph Cheng and Jaime Cheng, to sign an agreement and waiver 18 to
vs. Antonio Ching’s estate in consideration of ₱22.5 million. Mercedes Igne’s children alleged that
JOSEPH CHENG, JAIME CHENG, MERCEDES IGNE1 AND LUCINA Ramon Ching never paid them.19 On October 29, 1996, Ramon Ching allegedly executed an
SANTOS, Respondents. affidavit of settlement of estate,20 naming himself as the sole heir and adjudicating upon
himself the entirety of Antonio Ching’s estate.21
DECISION
Ramon Ching denied these allegationsand insisted that when Antonio Ching died, the Ching
LEONEN, J.: family association, headed by Vicente Cheng, unduly influenced him to give Mercedes Igne
and her children financial aid considering that they served Antonio Ching for years. It was for
this reason that an agreement and waiver in consideration of 22.5 million was made. He also
Rule 17 of the Rules of Civil Procedure governs dismissals of actions at the instance of the alleged that hewas summoned by the family association to execute an affidavit of settlement of
plaintiff. Hence, the "two-dismissal rule" under Rule 17, Section 1 of the Rules of Civil estate declaring him to be Antonio Ching’s sole heir. 22
Procedure will not apply if the prior dismissal was done at the instance of the defendant.
After a year of investigating Antonio Ching’s death, the police found Ramon Ching to be its
This is a petition for review on certiorari assailing the decision 2 and resolution3 of the Court of primary suspect.23 Information24 was filed against him, and a warrant of arrest25 was issued.
Appeals in CA-G.R. SP. No. 86818, which upheld the (1) order4 dated November 22, 2002
dismissing Civil Case No. 02-103319 without prejudice, and (2) the omnibus order 5 dated July
On October 7, 1998, Joseph Cheng, Jaime Cheng, and Mercedes Igne (the Chengs) filed a
30, 2004, which denied petitioners’ motion for reconsideration. Both orders were issued by the
Regional Trial Court of Manila, Branch 6.6 complaint for declaration of nullity of titles against Ramon Ching before the Regional Trial
Court of Manila. This case was docketed as Civil Case No. 98-91046 (the first case).26

The issues before this court are procedural. However, the factual antecedents in this case,
On March 22, 1999, the complaint was amended, with leave of court, to implead additional
which stemmed from a complicated family feud, must be stated to give context to its
procedural development. defendants, including Po Wing Properties, of which Ramon Ching was a primary
stockholder.The amended complaint was for "Annulment of Agreement, Waiver, Extra-Judicial
Settlement of Estate and the Certificates of Title Issued by Virtue of Said Documents with
It is alleged that Antonio Ching owned several businesses and properties, among which was
Po Wing Properties, Incorporated (Po Wing Properties).7 His total assets are alleged to have
Prayer for Temporary Restraining Order and Writ of Preliminary Injunction."27 Sometime after,
Lucina Santos filed a motion for intervention and was allowed to intervene. 28
After the responsive pleadings had been filed, Po Wing Properties filed a motion to dismiss on
the ground of lack of jurisdiction of the subject matter.29
On November 13, 2001, the Regional Trial Court of Manila, Branch 6, granted the motion to
dismiss on the ground of lack of jurisdiction over the subject matter. 30 Upon motion of the
Chengs’ counsel, however, the Chengs and Lucina Santos were given fifteen (15) days to file
the appropriate pleading. They did not do so.31
On April 19, 2002, the Chengs and Lucina Santos filed a complaint for "Annulment of
Agreement, Waiver, Extra-Judicial Settlement of Estate and the Certificates of Title Issued by
Virtue of Said Documents with Prayer for Temporary Restraining Order and Writ of Preliminary
Injunction" against Ramon Ching and Po Wing Properties. 32 This case was docketed as Civil
Case No. 02-103319 (the second case) and raffled to Branch 20 of the Regional Trial Court of
Manila.33 When Branch 20 was made aware of the first case, it issued an order transferring the
case to Branch 6, considering that the case before it involved substantially the same parties
and causes of action.34
On November 11, 2002, the Chengs and Lucina Santos filed a motion to dismiss their
complaint in the second case, praying that it be dismissed without prejudice. 35
On November 22, 2002, Branch 6 issued an order granting the motion to dismiss on the basis
that the summons had not yet been served on Ramon Ching and Po Wing Properties, and they
had not yet filed any responsive pleading. The dismissal of the second case was made without
prejudice.36
On December 9, 2002, Ramon Ching and Po Wing Properties filed a motion for
reconsideration of the order dated November 22, 2002. They argue that the dismissal should
have been with prejudice under the "two dismissal rule" of Rule 17, Section 1 of the 1997
Rules of Civil Procedure, in view of the previous dismissal of the first case. 37
During the pendency of the motion for reconsideration, the Chengs and Lucina Santos filed a
complaint for "Disinheritance and Declaration of Nullity of Agreement and Waiver, Affidavit of
Extra judicial Agreement, Deed of Absolute Sale, and Transfer Certificates of Title with Prayer
for TRO and Writ of Preliminary Injunction" against Ramon Ching and Po Wing Properties.
This case was docketed as Civil Case No. 02-105251(the third case) and was eventually
raffled to Branch 6.38
On December 10, 2002, Ramon Ching and Po Wing Properties filed their comment/opposition
to the application for temporary restraining order in the third case. They also filed a motion to
dismiss on the ground of res judicata, litis pendencia, forum-shopping, and failure of the
complaint to state a cause of action. A series of responsive pleadings were filed by both
parties.39
On July 30, 2004, Branch 6 issued an omnibus order 40 resolving both the motion for
reconsideration in the second case and the motion to dismiss in the third case. The trial court
denied the motion for reconsideration and the motion to dismiss, holding that the dismissal of
the second case was without prejudice and, hence, would not bar the filing of the third
case.41 On October 8, 2004, while their motion for reconsideration in the third case was
pending, Ramon Ching and Po Wing Properties filed a petition for certiorari (the first certiorari
case) with the Court of Appeals, assailing the order dated November 22,2002 and the portion
of the omnibus order dated July 30, 2004, which upheldthe dismissal of the second case.42
On December 28, 2004, the trial court issued an order denying the motion for reconsideration
in the third case. The denial prompted Ramon Ching and Po Wing Properties to file a petition
for certiorari and prohibition with application for a writ of preliminary injunction or the issuance
of a temporary restraining order (the second certiorari case) with the Court of Appeals. 43
On March 23, 2006, the Court of Appeals rendered the decision 44 in the first certiorari case
dismissing the petition. The appellate court ruled that Ramon Ching and Po Wing Properties’
reliance on the "two-dismissal rule" was misplaced since the rule involves two motions for
dismissals filed by the plaintiff only. In this case, it found that the dismissal of the first case was
upon the motion of the defendants, while the dismissal of the second case was at the instance
of the plaintiffs.45
Upon the denial of their motion for reconsideration, 46 Ramon Ching and Po Wing Properties
filed this present petition for review47 under Rule 45 of the Rules of Civil Procedure.
Ramon Ching and Po Wing Properties argue that the dismissal of the second case was with
prejudice since the non-filing of an amended complaint in the first case operated as a dismissal
on the merits.48 They also argue that the second case should be dismissed on the ground of
res judicata since there was a previous final judgment of the first case involving the same
parties, subject matter, and cause of action.49
Lucina Santos was able to file a comment50 on the petition within the period required.51 The
Chengs, however, did not comply.52 Upon the issuance by this court of a show cause order on
September 24, 2007,53 they eventually filed a comment with substantially the same allegations
and arguments as that of Lucina Santos’.54
In their comment, respondents allege that when the trial court granted the motion to dismiss,
Ramon Ching’s counsel was notified in open court that the dismissal was without prejudice.
They argue that the trial court’s order became final and executory whenhe failed to file his
motion for reconsideration within the reglementary period. 55
Respondents argue that the petition for review should be dismissed on the ground of forum
shopping and litis pendencia since Ramon Ching and Po Wing Properties are seeking relief
simultaneously in two forums by filing the two petitions for certiorari, which involved the same
omnibus order by the trial court.56 They also argue that the "two-dismissal rule" and res
judicata did not apply since (1) the failure to amend a complaint is not a dismissal, and (2) they
only moved for dismissal once in the second case.57
In their reply,58 petitioners argue that they did not commit forum shopping since the actions
they commenced against respondents stemmed from the complaints filed against them in the
trial courts.59 They reiterate that their petition for review is only about the second case; it just
so happened that the assailed omnibus order resolved both the second and third cases. 60
Upon the filing of the parties’ respective memoranda,61 the case was submitted for decision.62
For this court’s resolution are the following issues:
I. Whether the trial court’s dismissal of the second case operated as a bar to the filing of a third
case, asper the "two-dismissal rule"; and
II. Whether respondents committed forum shopping when they filed the third case while the
motion for reconsideration of the second case was still pending.
The petition is denied.
The "two-dismissal rule" vis-à-vis
the Rules of Civil Procedure
Dismissals of actions are governed by Rule 17 of the 1997 Rules of Civil Procedure. The
pertinent provisions state:
RULE 17
DISMISSAL OF ACTIONS
SEC. 1. Dismissal upon notice by plaintiff. — A complaint may be dismissed by the plaintiff by
filing a notice of dismissal at any time before service of the answer or of a motion for summary
judgment. Upon such notice being filed, the court shall issue an order confirming the dismissal.
Unless otherwise stated in the notice, the dismissal is without prejudice, except that a notice
operates as an adjudication upon the merits when filed by a plaintiff who has once dismissed in
a competent court an action based on or including the same claim.
SEC. 2. Dismissal upon motion of plaintiff. — Except as provided in the preceding section, a
complaint shall not be dismissed at the plaintiff's instance save upon approval of the court and
upon such terms and conditions as the court deems proper. If a counterclaim has been
pleaded by a defendant prior to the service upon him of the plaintiff’s motion for dismissal, the
dismissal shall be limited to the complaint. The dismissal shall be without prejudice to the right
of the defendant to prosecute his counterclaim in a separate action unless within fifteen (15)
days from notice of the motion he manifests his preference to have his counterclaim resolved
in the same action. Unless otherwise specified in the order, a dismissal under this paragraph
shall be without prejudice. A class suit shall not be dismissed or compromised without the
approval of the court.
SEC. 3. Dismissal due to fault of plaintiff. — If, for no justifiable cause, the plaintiff fails to
appear on the date of the presentation of his evidence in chief on the complaint, or to
prosecute his action for an unreasonable length of time, or to comply with these Rules or any
order of the court, the complaint may be dismissed upon motion of the defendant or upon the
court's own motion, without prejudice to the right of the defendant to prosecute his
counterclaim in the same or in a separate action. This dismissal shall have the effect of an
adjudication upon the merits, unless otherwise declared by the court. (Emphasis supplied)
The first section of the rule contemplates a situation where a plaintiff requests the dismissal of
the case beforeany responsive pleadings have been filed by the defendant. It is donethrough
notice by the plaintiff and confirmation by the court. The dismissal is without prejudice unless
otherwise declared by the court.
The second section of the rule contemplates a situation where a counterclaim has been
pleaded by the defendant before the service on him or her of the plaintiff’s motion to dismiss. It
requires leave of court, and the dismissal is generally without prejudice unless otherwise
declared by the court.
The third section contemplates dismissals due to the fault of the plaintiff such as the failure to
prosecute. The case is dismissed either upon motion of the defendant or by the court motu
propio. Generally, the dismissal is with prejudice unless otherwise declared by the court.
In all instances, Rule 17 governs dismissals at the instance of the plaintiff, not of the defendant.
Dismissals upon the instance of the defendant are generally governed by Rule 16, which
covers motions to dismiss.63
In Insular Veneer, Inc. v. Hon. Plan,64 Consolidated Logging and Lumber Mills filed a complaint
against Insular Veneer to recover some logs the former had delivered to the latter. It also filed
ex partea motion for issuance of a restraining order. The complaint and motion were filed in a
trial court in Isabela.65
The trial court granted the motion and treated the restraining order as a writ of preliminary
injunction. When Consolidated Logging recovered the logs, it filed a notice of dismissal under
Rule 17, Section 1 of the 1964 Rules of Civil Procedure.66
While the action on its notice for dismissal was pending, Consolidated Logging filed the same
complaint against Insular Veneer, this time in a trial court in Manila. It did not mention any
previous action pending in the Isabela court.67
The Manila court eventually dismissed the complaint due to the nonappearance of
Consolidated Logging’s counsel during pre-trial. Consolidated Logging subsequently returned
to the Isabela court to revive the same complaint. The Isabela court apparently treated the
filing of the amended complaint as a withdrawal of its notice of dismissal. 68
Insular Veneer also filed in the Isabela court a motion to dismiss, arguing that the dismissal by
the Manila court constituted res judicataover the case. The Isabela court, presided over by
Judge Plan, denied the motion to dismiss. The dismissal was the subject of the petition for
certiorari and mandamus with this court.69
Manila case could he [sic] interposed in the Isabela court to support the defense of res
judicata.71
As a general rule, dismissals under Section 1 of Rule 17 are without prejudice except when it is
the second time that the plaintiff caused its dismissal. Accordingly, for a dismissal to operate
as an adjudication upon the merits, i.e, with prejudice to the re-filing of the same claim, the
following requisites must be present:
(1) There was a previous case that was dismissed by a competent court;
(2) Both cases were based on or include the same claim;
(3) Both notices for dismissal werefiled by the plaintiff; and

This court stated that:

(4) When the motion to dismiss filed by the plaintiff was consented to by the defendant on the
ground that the latter paid and satisfied all the claims of the former. 72
In resolving that issue, we are confronted with the unarguable fact that Consolidated Logging
on its volition dismissed its action for damages and injunction in the Isabela court and refiled
The purpose of the "two-dismissal rule" is "to avoid vexatious litigation." 73 When a complaint is
substantially the same action in the Manila court. Then, when the Manila court dismissed its
dismissed a second time, the plaintiff is now barred from seeking relief on the same claim.
action for failure to prosecute, it went hack [sic] to the Isabela court and revived its old action
by means of an amended complaint.
The dismissal of the second case was without prejudice in view of the "two-dismissal rule"
Consolidated Logging would liketo forget the Manila case, consign it to oblivion as if it were a
bad dream, and prosecute its amended complaint in the Isabela court as if nothing had Here, the first case was filed as an ordinary civil action. It was later amended to include not
transpired in the Manila court. We hold that it cannot elude the effects of its conduct in junking only new defendants but new causes of action that should have been adjudicated in a special
the Isabela case and in giving that case a reincarnation in the Manila court. proceeding. A motion to dismiss was inevitably filed by the defendants onthe ground of lack of
jurisdiction.
Consolidated Logging’ [sic] filed a new case in Manila at its own risk. Its lawyer at his peril
failed toappear at the pre-trial.70 The trial court granted that motion to dismiss, stating that:

This court ruled that the filing of the amended complaint in the Isabela court was barred by the A careful perusal of the allegations of the Amended Complaint dated February 10, 1999, filed
prior dismissal of the Manila court, stating that: by Plaintiff Joseph Cheng, show that additional causes of action were incorporated i.e.
extra-judicial settlement of the intestate estate of Antonio Ching and receivership, subject
matters, which should be threshed out in a special proceedings case. This is a clear departure
The provision in section 1(e), Rule 16 of the Rules of Court that an action may be dismissed
from the main cause of action in the original complaint which is for declaration of nullity of
because "there is another action pending between the same parties for the same cause"
certificate of titles with damages. And the rules of procedure which govern special proceedings
presupposes that two similar actions are simultaneously pending in two different Courts of First
case are different and distinct from the rules of procedure applicable in an ordinary civil action.
Instance. Lis pendensas a ground for a motion to dismiss has the same requisites as the plea
of res judicata.
In view of the afore-going, the court finds the Motion to Dismiss filed by Atty. Maria Lina Nieva
S. Casals to be meritorious and the Court is left with no alternative but to dismiss as it hereby
On the other hand, when a pleading is amended, the original pleading is deemed abandoned.
dismisses the Amended Complaint.
The original ceases to perform any further function as a pleading. The case stands for trial on
the amended pleading only. So, when Consolidated Logging filed its amended complaint dated
March 16, 1970 in Civil Case No. 2158, the prior dismissal order dated January 5, 1970 in the
However, on motion of Atty. Mirardo Arroyo Obias, counsel for the plaintiffs, he is given a
period of fifteen (15) days from today, within which to file an appropriate pleading, copy
furnished to all the parties concerned.
....
SO ORDERED.74
Petitioners are of the view that when Atty. Mirardo Arroyo Obias failed to file the appropriate
pleading within fifteen (15) days, he violated the order of the court. This, they argue, made the
original dismissal an adjudication upon the merits, in accordance with Rule 17, Section 3, i.e.,
a dismissal through the default of the plaintiff. Hence, they argue that when respondents filed
the second case and then caused its dismissal, the dismissal should have been with prejudice
according to Rule 17, Section 1, i.e., two dismissals caused by the plaintiff on the same claim.
Unfortunately, petitioners’ theory is erroneous.
The trial court dismissed the first case by granting the motion to dismiss filed by the defendants.
When it allowed Atty. Mirardo Arroyo Obias a period of fifteen (15) days tofile an appropriate
pleading, it was merely acquiescing to a request made bythe plaintiff’s counsel that had no
bearing on the dismissal of the case.
Under Rule 17, Section 3, a defendant may move to dismiss the case if the plaintiff defaults; it
does not contemplate a situation where the dismissal was due to lack of jurisdiction. Since
there was already a dismissal prior to plaintiff’s default, the trial court’s instruction to file the
appropriate pleading will not reverse the dismissal. If the plaintiff fails to file the appropriate
pleading, the trial court does not dismiss the case anew; the order dismissing the case still
stands.
The dismissal of the first case was done at the instance of the defendant under Rule 16,
Section 1(b) of the Rules of Civil Procedure, which states:
SECTION 1. Grounds.— Within the time for but before filing the answer to the complaint or
pleading asserting a claim, a motion to dismiss may be made on any of the following grounds:
....
(b) That the court has no jurisdiction over the subject matter of the claim;
....
Under Section 5 of the same rule,75 a party may re-file the same action or claim subject to
certain exceptions.
Thus, when respondents filed the second case, they were merely refiling the same claim that
had been previously dismissed on the basis of lack of jurisdiction. When they moved to dismiss
the second case, the motion to dismiss can be considered as the first dismissal at the plaintiff’s
instance.
Petitioners do not deny that the second dismissal was requested by respondents before the
service of any responsive pleadings. Accordingly, the dismissal at this instance is a matter of
right that is not subject to the trial court’s discretion. In O.B. Jovenir Construction and
Development Corporation v. Macamir Realty and Development Corporation: 76
[T]he trial court has no discretion or option to deny the motion, since dismissal by the plaintiff
under Section 1, Rule 17 is guaranteed as a matter of right to the plaintiffs. Even if the motion
cites the most ridiculous of grounds for dismissal, the trial court has no choice but to consider
the complaint as dismissed, since the plaintiff may opt for such dismissal as a matter of right,
regardless of ground.77 (Emphasis supplied)
For this reason, the trial court issued its order dated November 22, 2002 dismissing the case,
without prejudice. The order states:
When this Motion was called for hearing, all the plaintiffs namely, Joseph Cheng, Jaime Cheng,
Mercedes Igne and Lucina Santos appeared without their counsels. That they verbally affirmed
the execution of the Motion to Dismiss, as shown by their signatures over their respective
names reflected thereat. Similarly, none of the defendants appeared, except the counsel for
defendant, Ramon Chang [sic], who manifested that they have not yet filed their Answer as
there was a defect in the address of Ramon Cheng [sic] and the latter has not yet been served
with summons.
Under the circumstances, and further considering that the defendants herein have not yet filed
their Answers nor any pleading, the plaintiffs has [sic] the right to out rightly [sic] cause the
dismissal of the Complaint pursuant to Section 2, Rule 17 of the 1997 Rules of Civil Procedure
without prejudice. Thereby, and as prayed for, this case is hereby ordered DISMISSED without
prejudice.
SO ORDERED.78 (Emphasis supplied)
When respondents filed the third case on substantially the same claim, there was already one
prior dismissal at the instance of the plaintiffs and one prior dismissal at the instance of the
defendants. While it is true that there were two previous dismissals on the same claim, it does
not necessarily follow that the re-filing of the claim was barred by Rule 17, Section 1 of the
Rules of Civil Procedure. The circumstances surrounding each dismissal must first be
examined to determine before the rule may apply, as in this case.
Even assuming for the sake of argument that the failure of Atty. Mirardo Arroyo Obias to file
the appropriate pleading in the first case came under the purview of Rule 17, Section 3 of the
Rules of Civil Procedure, the dismissal in the second case is still considered as one without
prejudice. In Gomez v. Alcantara:79
The dismissal of a case for failure to prosecute has the effect of adjudication on the merits, and
is necessarily understood to be with prejudice to the filing of another action, unless otherwise
provided in the order of dismissal. Stated differently, the general rule is that dismissal of a case
for failure to prosecute is to be regarded as an adjudication on the merits and with prejudice to
the filing of another action, and the only exception is when the order of dismissal expressly
contains a qualification that the dismissal is without prejudice. 80 (Emphasis supplied)
In granting the dismissal of the second case, the trial court specifically orders the dismissal to
be without prejudice. It is only when the trial court’s order either is silent on the matter, or
states otherwise, that the dismissal will be considered an adjudication on the merits.
However, while the dismissal of the second case was without prejudice, respondents’ act of
filing the third case while petitioners’ motion for reconsideration was still pending constituted
forum shopping.
The rule against forum shopping and the "twin-dismissal rule"
In Yap v. Chua:81
Forum shopping is the institution of two or more actions or proceedings involving the same
parties for the same cause of action, either simultaneously or successively, on the supposition
that one or the other court would make a favorable disposition. Forum shopping may be
resorted to by any party against whom an adverse judgment or order has been issued in one
forum, in an attempt to seek a favorable opinion in another, other than by appeal or a special
civil action for certiorari. Forum shopping trifles with the courts, abuses their processes,
degrades the administration of justice and congest court dockets. What iscritical is the vexation
brought upon the courts and the litigants by a party who asks different courts to rule on the
same or related causes and grant the same or substantially the same reliefs and in the process
creates the possibility of conflicting decisions being renderedby the different fora upon the
same issues. Willful and deliberate violation of the rule against forum shopping is a ground for
summary dismissal of the case; it may also constitute direct contempt.
To determine whether a party violated the rule against forum shopping, the most important
factor toask is whether the elements of litis pendentiaare present, or whether a final judgment
in one case will amount to res judicatain another; otherwise stated, the test for determining
forum shopping is whether in the two (or more) cases pending, there is identity of parties,
rights or causes of action, and reliefs sought.82 (Emphasis supplied)
When respondents filed the third case, petitioners’ motion for reconsideration of the dismissal
of the second case was still pending. Clearly, the order of dismissal was not yet final since it
could still be overturned upon reconsideration, or even on appeal to a higher court.
Moreover, petitioners were not prohibited from filing the motion for reconsideration. This court
has already stated in Narciso v. Garcia83 that a defendant has the right to file a motion for
reconsideration of a trial court’s order denying the motion to dismiss since "[n]o rule prohibits
the filing of such a motion for reconsideration."84 The second case, therefore, was still pending
when the third case was filed.
The prudent thing that respondents could have done was to wait until the final disposition of
the second case before filing the third case. As it stands, the dismissal of the second case was
without prejudice to the re-filing of the same claim, in accordance with the Rules of Civil
Procedure. In their haste to file the third case, however, they unfortunately transgressed
certain procedural safeguards, among which are the rules on litis pendentiaand res judicata.
In Yap:
Litis pendentiaas a ground for the dismissal of a civil action refers to that situation wherein
another action is pending between the same parties for the same cause of action, such that the
second action becomes unnecessary and vexatious. The underlying principle of litis pendentia
is the theory that a party is not allowed to vex another more than once regarding the same
subject matter and for the same cause of action. This theory is founded on the public policy
that the same subject matter should not be the subject of controversy incourts more than once,
in order that possible conflicting judgments may be avoided for the sake of the stability of the
rights and status of persons.
The requisites of litis pendentiaare: (a) the identity of parties, or at least such as representing
the same interests in both actions; (b) the identity of rights asserted and relief prayed for, the
relief being founded on the same facts; and (c) the identity of the two cases such that judgment
in one, regardless ofwhich party is successful, would amount to res judicatain the
other.85 (Emphasis supplied)
There is no question that there was an identity of parties, rights, and reliefs in the second and
third cases. While it may be true that the trial court already dismissed the second case when
the third case was filed, it failed to take into account that a motion for reconsideration was filed
in the second case and, thus, was still pending. Considering that the dismissal of the second
case was the subject of the first certiorari case and this present petition for review, it can be
reasonably concluded that the second case, to this day, remains pending.
Hence, when respondents filed the third case, they engaged in forum shopping. Any judgment
by this court on the propriety of the dismissal of the second case will inevitably affect the
disposition of the third case.
This, in fact, is the reason why there were two different petitions for certiorari before the
appellate court. The omnibus order dated July 30, 2004 denied two pending motions by
petitioners: (1) the motion for reconsideration in the second case and (2) the motion to dismiss
in the third case. Since petitioners are barred from filing a second motion for reconsideration of
the second case, the first certiorari case was filed before the appellate court and is now the
subject of this review. The denial of petitioners’ motion for reconsideration in the third case,
however, could still be the subject of a separate petition for certiorari. That petition would be
based now on the third case, and not on the second case.
This multiplicity of suits is the veryevil sought to be avoided by the rule on forum shopping. In
Dy v. Mandy Commodities Co., Inc.,86 the rule is that:
Once there is a finding of forum shopping, the penalty is summary dismissal not only of the
petition pending before this Court, but also of the other case that is pending in a lower court.
This is so because twin dismissal is a punitive measure to those who trifle with the orderly
administration of justice.87 (Emphasis supplied)
continue, it would not serve the ends of substantial justice. Courts of justice must always
endeavor to resolve cases on their merits, rather than summarily dismiss these on
technicalities: [C]ases should be determined on the merits, after all parties have been given full
opportunity to ventilate their causes and defenses, rather than on technicalities or procedural
imperfections. In that way, the ends of justice would be served better. Rules of procedure are
mere tools designed to expedite the decision or resolution of cases and other matters pending
in court. A strict and rigid application of rules, resulting in technicalities that tend to frustrate
rather than promote substantial justice, must be avoided.In fact, Section 6 of Rule 1 states that
the Rules [on Civil Procedure] shall be liberally construed in order to promote their objective of
ensuring the just, speedy and inexpensive disposition of every action and
proceeding.92 (Emphasis supplied)

The rule on forum shopping will not strictly apply when it can be shown that (1) the original
The rule originated from the 1986 case of Buan v. Lopez, Jr. 88 In Buan, petitioners filed a
case has been dismissed upon request of the plaintiff for valid procedural reasons; (2) the only
petition for prohibition with this court while another petition for prohibition with preliminary
pending matter is a motion for reconsideration; and (3) there are valid procedural reasons that
injunction was pending before the Regional Trial Court of Manila involving the same parties
serve the goal of substantial justice for the fresh new· case to proceed.
and based on the same set of facts. This court, in dismissing both actions, stated:

The motion for reconsideration filed in the second case has since been dismissed and is now
Indeed, the petitioners in both actions . . . have incurred not only the sanction of dismissal
the subject of a petition for certiorari. The third case filed apparently contains the better cause
oftheir case before this Court in accordance with Rule 16 of the Rules of Court, but also the
of action for the plaintiffs and is now being prosecuted by a counsel they are more comfortable
punitive measure of dismissal of both their actions, that in this Court and that in the Regional
with. Substantial justice will be better served if respondents do not fall victim to the labyrinth in
Trial Court as well. Quite recently, upon substantially identical factual premises, the Court en
the procedures that their travails led them. It is for this reason that we deny the petition.
banchad occasion to condemn and penalize the act of litigants of filing the same suit in
WHEREFORE, the petition is DENIED. The Regional Trial Court of Manila, Branch 6 is
different courts, aptly described as "forum shopping[.]" 89
ordered to proceed with Civil Case No. 02-105251 with due and deliberate dispatch.

The rule essentially penalizes the forum shopper by dismissing all pending actions on the
SO ORDERED.
same claim filed in any court. Accordingly, the grant of this petition would inevitably result in
the summary dismissal of the third case. Any action, therefore, which originates from the third
case pending with any court would be barred by res judicata.

Because of the severity of the penalty of the rule, an examination must first be made on the
purpose of the rule.1âwphi1 Parties resort to forum shopping when they file several actions of
the same claim in different forums in the hope of obtaining a favorable result. It is prohibited by
the courts as it "trifle[s] with the orderly administration of justice."90

In this case, however, the dismissal of the first case became final and executory upon the
failure of respondents’counsel to file the appropriate pleading. They filed the correct pleading
the second time around but eventually sought its dismissal as they"[suspected] that their
counsel is not amply protecting their interests as the case is not moving for almost three (3)
years."91 The filing of the third case, therefore, was not precisely for the purpose of obtaining a
favorable result butonly to get the case moving, in an attempt to protect their rights.

It appears that the resolution on the merits of the original controversy between the parties has
long beenmired in numerous procedural entanglements. While it might be more judicially
expedient to apply the "twin-dismissal rule" and disallow the proceedings in the third case to