Filing and Service of Pleadings Under the Rules of Civil Procedure

Rule 13 Filing and Service of
Pleadings,
Judgments and Other Papers
1997 Rules on Civil Procedure

2001 Edition
Rule 03
FILING AND SERVICE OF PLEADINGS,

JUDGMENTS AND OTHER PAPERS
Section 1. Coverage. This Rule shall govern the filing of all pleadings and
other papers, as well as the service thereof, except those for which a different
mode of service is prescribed. (n)
As a general rule, service of all pleadings is governed by Rule 13. So, this rule governs
pleadings except those for which a different mode of service is prescribed. An example
of the exception is the service of complaint which is governed by Rule 14. So Rule 13
applies to all pleadings except complaint.
What is the difference between filing and service of pleadings? Section 2:
Sec. 2. Filing and service, defined. Filing is the act of presenting the
pleading or other paper to the clerk of court.
Service is the act of providing a party with a copy of the pleading or paper
concerned. If any party has appeared by counsel, service upon him shall be made
upon his counsel or one of them, unless service upon the party himself is
ordered by the court. Where one counsel appears for several parties, he shall
only be entitled to one copy of any paper served upon him by the opposite side.
(2a)
When you say FILING, you present the pleading in the office of the clerk of court. When
you say SERVICE, you furnish a copy of the pleading to the party concerned, or if he is
represented by a lawyer, you must furnish a copy of the pleading to the lawyer.
The GENERAL RULE, when a party is represented by a lawyer, the service should be to
the lawyer and not to the party. Service to a party is not valid. What is valid is service to
the counsel. Service to the lawyer binds the party. But service to the party does not bind
the lawyer, unless the court orders direct service to the party.
Q: What is the reason for requiring service upon the lawyer if the party is so
represented?
A: The reason for the rule is to do away with the subsequent objection which the party
served may raise to the effect that he knows nothing about court procedure and also to
maintain a uniform procedure calculated to place in competent hands the orderly
prosecution of a partys case. (Hernandez vs. Clapis, 87 Phil. 437; Javier Logging Corp. vs.
Mardo, L-28188, Aug. 27, 1968)
So, the purpose there is to avoid any complaint later that the party did not know what
to do. Since the lawyer is presumed to know the rules, at least it is on competent hands.
But if you got to the party himself, the problem is he might start complaining later, My
golly, kaya nga ako kumuha ng abogado kasi hindi ako marunong.
There was a even a case when the client volunteered to get the copy of the decision.
But he party failed to give it to his lawyer. Is the lawyer bound, or is the party also bound?
NO, because the rule is service to lawyer binds the client and not the other way around.
So, to avoid all these problems, there must be a uniform rule UNLESS, the law says,
SERVICE UPON THE PARTY HIMSELF IS ORDERED BY THE COURT. Example is in the case of
RETONI, JR. vs. COURT OF APPEALS
218 SCRA 468 [1993]
HELD: Usually, service is ordered upon the party himself, instead of upon his
attorney, [1] when it is doubtful who the attorney for such party is, or [2] when
he cannot be located or [3] when the party is directed to do something
personally, as when he is ordered to show cause.
Property of LAKAS ATENISTA
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There are rare circumstances however where service to the lawyer does not bind the
client. These are cases of negligence; where the lawyer is in bad faith for gross
negligence; where he deliberately prejudiced his client. So it is unfair that the party may
be bound by the service to the lawyer because of those circumstances. One such instance
happened in the case of
BAYOG vs. NATINO
258 SCRA 378 [1996]
HELD: Notice to the lawyer who appears to have been unconscionably
irresponsible cannot be considered as notice to his client. The application to the
given case of the doctrine that notice to counsel is notice to parties should be
looked into and adopted, according to the surrounding circumstances; otherwise,
in the courts desire to make a short cut of the proceedings, it might foster,
wittingly or unwittingly, dangerous collusions to the detriment of justice. It would
then be easy for one lawyer to sell ones rights down the river, by just alleging
that he just forgot every process of the court affecting his clients, because he
was so busy.
So,sasabihin lang niya, Sorry ha, nakalimutan ko, and then you are bound
Masyadong masakit naman iyan.
Q: Now, if there are 5 defendants in the same case and there is only one (1) lawyer for
all, is the lawyer entitled to 5 copies also?
A: NO, the lawyer is not entitled to 5 copies but only one (1). Last sentence, Where
one counsel appears for several parties, he shall only be entitled to one copy of any paper
served upon him by the opposite side. But if the 5 defendants are represented by
different lawyers, that is another story. Every lawyer has to be furnished a copy.
Q: Suppose you are represented by three or more lawyers. Mga collaborating lawyers,
ba. Bawat abogado ba may kopya?
A: NO, service on one is sufficient. Section 2 says, service shall be made upon his
counsel or one of them Service to one is service to all. You can do it if you want to but
service on one will suffice.
A. FILING OF PLEADINGS, JUDGMENTS AND OTHER PAPERS
Now, how do you file pleadings? Section 3:
Sec. 3. Manner of filing. The filing of pleadings, appearances, motions,
notices, orders, judgments and all other papers shall be made by presenting the
original copies thereof, plainly indicated as such, personally to the clerk of
court or by sending them by registered mail. In the first case, the clerk of
court shall endorse on the pleading the date and hour of filing. In the second
case, the date of the mailing of motions, pleadings, or any other papers or
payments or deposits, as shown by the post office stamp on the envelope or the
registry receipt, shall be considered as the date of their filing, payment, or
deposit in court. The envelope shall be attached to the record of the case. (1a)
Under Section 3, there are two (2) modes of filing either

1.) Personally; or
2.) by registered mail
First Mode of Filing: PERSONAL FILING
This mode of filing is done personally to the clerk of court. You go to the court and the
court will mark it RECEIVED on January 15, 1998, 9:00 a.m. Then, that is deemed filed.
That is personal filing.
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Section 3 says, by presenting the original copies thereof, plainly indicated as such
personally to the clerk of court There was a lawyer before who referred to me. He said
he filed a complaint. There are many copies of it. The court will usually receive 2 or 3
copies 1 for itself, 1 for the defendant to be sued in summons, then any balance, ibalik
sa iyo. Sabi niya, ayaw daw tanggapin kasi wala raw nakalagay na ORIGINAL. Sabi ng
lawyer, lahat naman ito original, kasi naka-computer. So, everything is original. Sabi na
clerk of court, Eh di, dapat sulatan mo ng original! Where did the clerk of court got that
rule? Maski klaro na, sulatan pa rin ng original? Sabi ng clerk of court, Nasa 1997 Rules
and requirement na iyan.
So I started to think. And I think, itong provision (Section 3) ang ibig sabihin ng clerk of
court, The filing of pleadings shall be made by presenting the original copy thereor
plainly indicated as such. Meaning, original, duplicate, original, duplicate. To my
mind, huwagn amang masyadong istrikto. Nasubrahan ng basa ba! When you read too
much, you become very technical. Why refuse to accept? Simply because walang word na
original? Eh, di ikaw ang maglagay! So the clerk of court, with that phrase plainly
indicated as such, becomes too strict.
Second Mode of Filing: FILING BY REGISTERED MAIL
The other mode is by registered mail. It is not ordinary mail. It is registered mail.
Q: What is the importance of registered mail on filing of pleadings and motions in
court?
A: The importance is the rule that in registered mails, the date of filing is the date of
mailing. If you send the pleading through the Post Office by registered mail, the date of
filing is not the date on which the letter reached the court but on the day that you mailed
it. So the date on the envelope is officially the date of filing.
Q: Now, suppose I will file my pleading not by registered mail but throught
messengerial service like LBC or JRS Express delivery, or by ordinary mail? What is the rule
if instead of the registered service of the Post Office, you availed the private messengerial
service or by ordinary mail?
A: The mailing in such cases is considered as personal filing and the pleading is not
deemed filed until it is received by the court itself.
When it is by registered mail, the date of mailing as shown by the Post Office stamp is
considered as the date of filing. The envelope is attached. The post office is automatically
a representative of the court for the purpose of filing. In other words, the law treats the
messengerial company only as your process helper. That is why in the 1994 case of
INDUSTRIAL TIMBER CORP. vs. NLRC
233 SCRA 597 [1994]
HELD: Where a pleading is filed by ordinary mail or by private messengerial
service, it is deemed filed on the day it is actually received by the court, not on
the day it was mailed or delivered to the messengerial service.
What about filing by FAX machine? In the case of
GARVIDA vs. SALES, JR.
April 18, 1997
HELD: Filing a pleading by facsimile transmission is NOT sanctioned by the
Rules of Court. A facsimile is not a genuine and authentic pleading. It is, at best,
an exact copy preserving all the marks of an original. Without the original, there
is no way of determining on its face whether the facsimile pleading is genuine
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and authentic and was originally signed by the party and his counsel. It may, in
fact, be a sham pleading.
Q: Now, how do you prove that really the pleading was filed?
A: Section 12. This is a new rule on how to prove that a pleading is filed
Sec. 12. Proof of filing. The filing of a pleading or paper shall be proved
by its existence in the record of the case. If it is not in the record, but is
claimed to have been filed personally, the filing shall be proved by the written
or stamped acknowledgment of its filing by the clerk of court on a copy of the
same; if filed by registered mail, by the registry receipt and by the affidavit
of the person who did the mailing, containing a full statement of the date and
place of depositing the mail in the post office in a sealed envelope addressed
to the court, with postage fully prepaid, and with instructions to the
postmaster to return the mail to the sender after ten (10) days if not
delivered. (n)
Q: Suppose I filed it in court PERSONALLY, but it is not there, therefore, there is no

showing that I filed it in court personally. So how do I prove it?
A: Just show your copy which is duly stamped and received by the court. Definitely, the
fault is not yours but with the clerk of court.
Q: If filed by REGISTERED MAIL. Suppose the court has no copy of it, it had been lost
between the post office and the court?
A: Prove it by presenting the registry receipt and the affidavit of the server, containing
a full statement of the date and place of depositing the mail in the post office in a sealed
envelope addressed to the court. It must be stressed that the affidavit is very important.
B. SERVICE OF PLEADINGS, JUDGMENTS AND OTHER PAPERS
Sec. 4. Papers required to be filed and served. Every judgment, resolution,
order, pleading subsequent to the complaint, written motion, notice, appearance,
demand, offer of judgment or similar papers shall be filed with the court, and
served upon the parties affected. (2a)
Let us now go to service. Under the law, before you file, there must be service to the
opposing partys counsel. And all documents, as a rule, shall be filed to the court and
served to the parties affected. Or, all pleadings SUBSEQUENT to the complaint. bakit ba
subsequent? Meaning, answer, counterclaim, cross-claim.
Q: Do you mean to tell me the complaint does not have to be served to the defendant
by the plaintiff?
A: Of course not! It is the sheriff who will serve it to the defendant. So, the plaintiff does
not really have to go to the defendant to serve the complaint. The complaint is brought to
the court because the summons will be issued.
But if you are the defendants lawyer, you go directly to the plaintiffs lawyer to serve
the answer because an answer is a pleading subsequent to the complaint. Moreover, the
manner of serving complaint is not governed by 13 but by Rule 14.
Alright, every paper is required to be filed and served. Some people do not understand
this Every judgment, resolution, order shall be filed with the court and served to the
parties... Well of course, iyang mga pleadings, motions, etc., you file and serve because
there must be proof of service to the adverse party.
Now, judgments. It must be filed. Why will the court files its own judgment before
itself? Actually, the judge has to file his decision before the court. Read Rule 36, Section 1:
Rule 36, Section 1. Rendition of judgments and final orders. A judgment or
final order determining the merits of the case shall be in writing personally
and directly prepared by the judge, stating clearly and distinctly the facts and
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the law on which it is based, signed by him, and filed with the clerk of the
court. (1a)
So, the judge has to file his own decision to make it official.
Sec. 5. Modes of service. Service of pleadings, motions, notices, orders,
judgments and other papers shall be made either personally or by mail. (3a)
Q: How do you SERVE a pleading to the opposite party?

A: Either:
1.) personally or
2.) by mail; or
3.) Substituted service under Section 8 in case of failure of the personal service or
by registered mail
PERSONAL SERVICE OF PLEADINGS
Sec. 6. Personal service. Service of the papers may be made by delivering
personally a copy to the party or his counsel, or by leaving it in his office
with his clerk or with a person having charge thereof. If no person is found in
his office, or his office is not known, or he has no office, then by leaving the
copy, between the hours of eight in the morning and six in the evening, at the
party's or counsel's residence, if known, with a person of sufficient age and
discretion then residing therein. (4a)
How are pleadings served personally? You deliver it personally to the party if he is not
represented by a counsel. And if he is represented, then to his counsel. You dont have to
look for his lawyer you way leave it to his office with the clerk or any person charged
thereof and that is already personal service. Most lawyers have a receiving clerk
authorized to receive pleadings.
Now, let us go to some cases on personal service. The case of
PLDT vs. NLRC
128 SCRA 402 [1984]
FACTS: The office of the lawyer is on the 9th floor of a building in Makati. So,
siguro, sira iyong elevator, gikapoy iyong process server, what he did was, he
left the copy of the judgment to the receiving station at the ground floor.
ISSUE: Was there a valid service?
HELD: NO. The address of the lawyer is at the 9th floor. So, you serve it on
the 9th floor and not at the ground floor with somebody who is not even
connected with the law office.
Notices to counsel should properly be sent to the address of record in the
absence of due notice to the court of change of address. The service of decision
at the ground floor of a partys building and not at the address of record of the
partys counsel on record at the 9th floor of the building cannot be considered a
valid service.
Service upon a lawyer must be effected at the exact given address of the
lawyer and not in the vicinity or at a general receiving section for an entire multistoried building with many offices.
But
the case of PLDT should not be confused with what happened in the case of
PCI BANK vs. ORTIZ
150 SCRA 680 [1987]
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FACTS: This time, the office of the lawyer is located on the 5th floor. And
again, the habit of the process server is that instead of going to the 5th floor, he
would just approach the receiving station on the ground floor. Now, of course the
receiving clerk, everytime the lawyer passes by, gave it to the lawyer. And the
lawyer here did not question the practice.
Now, when a decision against PCI Bank was served, the lawyer claimed they
are not bound because there was no proper service.
ISSUE: Was there proper service?
HELD: While is true that the service was improper, but the trouble is, it was
going on for some time and you are not complaining. So, the ground floor
becomes your adopted address. Naloko na!
They cannot now disown this adopted address [iyung ground floor] to relieve
them from the effects of their negligence, complacency or inattention. Service,
therefore, of the notice of judgment at the ground floor of the building, should be
deemed as effective service.
So, the judgment became final. There was no appeal. Those are examples of personal
service.
Q: So, when is personal service complete?
A: It is completed upon actual delivery. Section 10:
Sec. 10. Completeness of service. Personal service is complete upon actual
delivery. Service by ordinary mail is complete upon the expiration of ten (10)
days after mailing, unless the court otherwise provides. Service by registered
mail is complete upon actual receipt by the addressee, or after five (5) days
from the date he received the first notice of the postmaster, whichever date is
earlier. (8a)
SERVICE OF PLEADINGS BY MAIL

Sec. 7. Service by mail. Service by registered mail shall be made by
depositing the copy in the office, in a sealed envelope, plainly addressed to
the party or his counsel at his office, if known, otherwise at his residence, if
known, with postage fully pre-paid, and with instructions to the postmaster to
return the mail to the sender after ten (l0) days if undelivered. If no registry
service is available in the locality of either the sender or the addressee,
service may be done by ordinary mail. (5a; as amended by En Banc Resolution,
Feb. 17, 1998)
Now, SERVICE BY MAIL. You can also serve your pleadings by mail. You will notice this
time although the law prefers service by registered mail, however, the last sentence of
Section 7 says, If no registry service is available in the locality of either the sender or the
addressee, service may be done by ordinary mail.
Take note, comparing Section 7 with Section 3, service by ordinary mail may be allowed
for purposes of service (Section 7), but for purposes of filing (Section 3), wala! For
purposes of filing, the law does not recognize the ordinary mail. If you do it, it will be
treated as personal filing. In registered mail, the date of receipt is considered the date of
filing not the date of mailing.
Q: Now, when is service by mail deemed complete?
A: Section 10:
Sec. 10. Completeness of service. Personal service is complete upon actual
delivery. Service by ordinary mail is complete upon the expiration of ten (10)
days after mailing, unless the court otherwise provides. Service by registered
mail is complete upon actual receipt by the addressee, or after five (5) days
from the date he received the first notice of the postmaster, whichever date is
earlier. (8a)
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So that is for the people who refuse to claim their mail even if they are already notified.
He knows it is an order he expects to be adverse so he will try to defeat the service by not
claiming it. NO, you are at a disadvantage because after the expiration of so many days,
service is deemed completed. That is what you call CONSTRUCTIVE SERVICE. So, a party or
a lawyer cannot defeat the process of the law by simply not claiming his mail. You can be
bound by a decision which you never read. That is constructive service.
SUBSTITUTED SERVICE OF PLEADINGS
Sec. 8. Substituted service. If service of pleadings, motions, notices,
resolutions, orders and other papers cannot be made under the two preceding
sections, the office and place of residence of the party or his counsel being
unknown, service may be made by delivering the copy to the clerk of court, with
proof of failure of both personal service and service by mail. The service is
complete at the time of such delivery. (6a)
Kung somehow there was an attempt of personal service or registered service at

walang nangyari, you can resort to by serving a copy to the clerk of court with proof of
failure of personal and mailing service. And by fiction of law, the adverse party has already
been served.
SERVICE OF DECISIONS, ORDERS, ETC.
Sec. 9. Service of judgments, final orders or resolutions. Judgments, final
orders or resolutions shall be served either personally or by registered mail.
When a party summoned by publication has failed to appear in the action,
judgments, final orders or resolutions against him shall be served upon him also
by publication at the expense of the prevailing party. (7a)
There are three (3) modes again of serving court orders or judgments to parties:
1.) personally;
2.) registered mail; or
3.) service by publication
So court orders or judgments orders have to be served also, either personally or by
registered mail. Thats why if you go to the court, there are employees there who are
called process servers. Everyday, they go around from law office to law office to serve
court orders, notices and judgments. And that is personal service. But if the lawyer is a
Manila lawyer, or is out of town, chances are the clerk of court will apply registered mail.
Under Section 9, there is a third mode of service of court orders and judgments and
that is service by publication. That is if the parties were summoned by publication under
Rule 14 and they did not appear. The judgment is also served to them by publication at the
expense of the prevailing party.
Sec. 11. Priorities in modes of service and filing. Whenever practicable,
the service and filing of pleadings and other papers shall be done personally.
Except with respect to papers emanating from the court, a resort to other modes
must be accompanied by a written explanation why the service or filing was not
done personally. A violation of this Rule may be cause to consider the paper as
not filed. (n)
That is a radical provision. In other words, there are two (2) ways of service: personal or
by mail. And the law says, personal service is preferred to mail. Meaning, personal service
is prioritized.
Q: Suppose you served the opposing counsel by mail.
A: The law requires that you must give an explanation why you resorted to mail and not
to personal service.
Q: Suppose I will file it without any explanation.
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A: The law says, A violation of this rule may be cause to consider the paper as not
filed. And that is a very radical rule..
For EXAMPLE: the opposing counsel is in Manila, and the case is in Davao. He will mail
to you the pleading or motion and then, nakalagay doon sa pleading : Explanation: I have
to resort to registered mail because it is expensive for me to resort to personal service. It
is expensive if I will send my messenger to Davao just to serve whereas if I send by
registered mail, it will only cost me P5.00. They have to state that. Takot sila eh because
without it, the pleading is not considered as filed. Of course this rule should be interpreted
based on common sense.
To my mind, the rule should be construed reasonably. If I am the judge, even if there is
no explanation, I will allow it. Common sense eh! Alangan papuntahin pa dito ang
messenger at pa-eroplanuhin mo pa!
Now, I think the purpose of this new provision has been provoked by some malpractices
of the lawyers. There were some instances before which have been confirmed especially in
Metro Manila. The opposing counsel is just across the street ang opisina. He will send a
motion to be received today. Instead of serving you, he will mail it. Mas malayo pa ang
Post Office para hindi mo matangap. They will deliberately do it because it could not reach
you on time. I think if you do that, I will not consider your motion. Or, kunwari may motion
ka. You will send me a copy by mail and you are along C.M. Recto St. Bakit ka nag-mail eh
mas malayo pa ang Post Office kaysa office ko? Unless you explain, I will deny your
motion.
Pero kung klaro naman or obvious, I do not think they should be construed strictly. Pero
para maniguro, you explaint na lang: Explanation: Because of time constraint and
distance, I had to resort to registered mail. That is now the standard explanation which
appears in many pleadings or motions. It is a radical provision.
Take note that courts are not covered by Section 11. It only applies to lawyers and
parties. The court does not have to explain why it resorted to registered mail because
Section 11 says, Whenever practicable, the service and filing of pleadings and other
papers shall be done personally EXCEPT WITH RESPECT TO PAPERS
E
EMANATING
FROM THE COURT.
So the court is not obliged to give any explanation, only the parties and their lawyers.
SOLAR TEAM ENTERTAINMENT vs. RICAFORTE
293 SCRA 661 [August 5, 1998] J. Davide
FACTS: Solar Team filed before the RTC a complaint against Felix Co.
Summons and copies of the complaint were forthwith served on Co. Co then filed
his answer. A copy thereof was furnished counsel for Solar Team by registered
mail; however, the pleading did not contain any written explanation as to why
service was not made personally upon Solar Team, as required by Section 11 of
Rule 13.
Solar Team filed a motion to expunge the answer and to declare Co in default,
alleging therein that Co did not observe the mandate of Section 11. RTC issued
an order stating that under Section 11 of Rule 13, it is within the discretion of the
RTC whether to consider the pleading as filed or not, and denying, for lack of
merit, Solar Teams motion to expunge.
HELD: Pursuant to Section 11 of Rule 13, service and filing of pleadings and
other papers MUST, whenever practicable, be done personally; and if made
through other modes, the party concerned must provide a written explanation as
to why the service or filing was not done personally. Note that Section 11 refers
to BOTH service of pleadings and other papers on the adverse party or his
counsel as provided for in Sections 6, 7 and 8; and to the filing of pleadings and
other papers in court.
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Personal service will do away with the practice of some lawyers who,
wanting to appear clever, resort to the following less than ethical practices:
serving or filing pleadings by mail to catch opposing counsel off-guard, thus
leaving the latter with little or no time to prepare, for instance, responsive
pleadings or an opposition; or, upon receiving notice from the post office that the
registered parcel containing the pleading of or other paper from the adverse
party may be claimed, unduly procrastinating before claiming the parcel, or,
worse, not claiming it at all, thereby causing undue delay in the disposition of
such pleading or other papers.
If only to underscore the mandatory nature of this innovation to our set of
adjective rules requiring personal service whenever practicable, Section 11 then
gives the court the discretion to consider a pleading or paper as not filed if the
other modes of service or filing were resorted to and no written explanation was
made as to why personal service was not done in the first place. The exercise of
discretion must, necessarily, consider the practicability of personal service, for
Section 11 itself begins with the clause whenever practicable.
We thus take this opportunity to clarify that under Section 11: Personal
service and filing is the GENERAL RULE, and resort to other modes of service and
filing, the EXCEPTION. Henceforth, whenever personal service or filing is
practicable, in light of the circumstances of time, place and person, personal
service or filing is mandatory. Only when personal service or filing is not
practicable may resort to other modes be had, which must then be accompanied
by a written explanation as to why personal service or filing was not practicable
to begin with.
Of course, proximity would seem to make personal service most practicable,
but exceptions may nonetheless apply such as when: the adverse party or
opposing counsel to be served with a pleading seldom reports to office and no
employee is regularly present to receive pleadings, or service is done on the last
day of the reglementary period and the office of the adverse party or opposing
counsel to be served is closed, for whatever reason.
However in view of the proximity between the offices of opposing counsel
and the absence of any attendant explanation as to why personal service of the
answer was not effected, indubitably, Cos counsel violated Section 11 and the
motion to expunge was prima facie meritorious. However, the grant or denial of
said motion nevertheless remained within the sound exercise of the RTC's
discretion.
To Our mind, if motions to expunge or strike out pleadings for violation of
Section 11 were to be indiscriminately resolved under Section 6 of Rule 1, then
Section 11 would become meaningless and its sound purpose negated.
Nevertheless, We sustain the challenged ruling of the RTC, but for reasons other
than those provided for in the challenged order.
The 1997 Rules of Civil Procedure took effect only on 1 Jul 1997, while the
answer was filed only on 8 Aug 1997, or on the 39th day following the effectivity
of the 1997 Rules. Hence, Cos counsel may not have been fully aware of the
requirements and ramifications of Section 11. It has been several months since
the 1997 Rules of Civil Procedure took effect. In the interim, this Court has
generally accommodated parties and counsel who failed to comply with the
requirement of a written explanation whenever personal service or filing was not
practicable, guided, in the exercise of our discretion, by the primary objective of
Section 11, the importance of the subject matter of the case, the issues involved
and the prima facie merit of the challenged pleading.
However, as we have in the past, for the guidance of the Bench and Bar,
strictest compliance with Section 11 of Rule 13 is mandated one month from
promulgation of this Decision.
WHEREFORE, the instant petition is DISMISSED considering that while the
justification for the denial of the motion to expunge the answer (with
counterclaims) may not necessarily be correct, yet, for the reasons above stated,
the violation of Section 11 of Rule 13 may be condoned.
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Sec. 13. Proof of service. Proof of personal service shall consist of a

written admission of the party served, or the official return of the server, or
the affidavit of the party serving, containing a full statement of the date,
place and manner of service. If the service is by ordinary mail, proof thereof
shall consist of an affidavit of the person mailing of facts showing compliance
with section 7 of this Rule. If service is made by registered mail, proof shall
be made by such affidavit and the registry receipt issued by the mailing office.
The registry return card shall be filed immediately upon its receipt by the
sender, or in lieu thereof the unclaimed letter together with the certified or
sworn copy of the notice given by the postmaster to the addressee. (10a)
Q: How do you prove that you furnished the opposing lawyer a copy by PERSONAL
SERVICE?
A: It is through the written admission of the party served as admitted that he had been
furnished with a copy. The other alternative is that you file the affidavit of your employee,
or messenger, that he served the copy in the office of so and so. (containing full statement
of facts). Or, the official return of the server.
The procedure is that there is a pleading and in the last portion there is that part which
states:
Copy received
By
January 16, 1998
(Signed) Atty. X
Counsel of Plaintiff
Q: If it is by ORDINARY MAIL, how do you prove in court that you served a copy?
A: If it is ordinary mail, proof thereof shall consist of an affidavit of the person mailing
of facts showing compliance with Section 7.
Q: If it is by REGISTERED MAIL, how do you prove in court that you served a copy?
A: If service is made by registered mail, proof shall consist of the affidavit of the mailer
and the registry receipt issued by the mailing office. The registry return card shall be filed
immediately upon its receipt by the sender. Or, in lieu thereof, of the unclaimed letter
together with the certified or sworn copy of the notice given by the postmaster that is a
constructive service no?
Now in practice among lawyers when we serve by registered mail, we only attach the
original in the registry receipt and there is a quotation there in the original pleading, Copy
sent by registered mail, this 17th day of January, 1998 to Atty. Juan dela Cruz, counsel for
the plaintiff per registry receipt no. 123 hereto attached, and nobody complains.
But in reality, the law does not allow that. There must be an affidavit of the person who
mailed it. The surrender of a registry receipt alone is not sufficient because if you send the
registry receipt, it is not reflected to whom that letter is addressed so how will the court
know that the registry receipt really corresponded to the pleading that you mailed? It
might be another letter like a love letter for your girlfriend or a letter to your creditor. The
registry receipt will not indicate kung ano ang na-mailed to his address. But we just allow it
because it is too tedious everytime you file, affidavit?!!
But take note, the CA and the SC enforce this strictly. Even if you mail a petition at may
nakalagay na Copy sent by registered mail without the affidavit, outright dismissal yan
for lack of proof of service. The SC and the CA are very strict about this requirement.
Lets go to this topic of CONSTRUCTIVE SERVICE that if the registered mail was not
received and therefore you want to avail of the rules on constructive service it is deemed
served upon the expiration of so many days. What you will file in court is the unclaimed
letter together with a certified or sworn copy of the notice given by the postmaster to the
addressee.
Let us see what happened in the case of
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Pleadings,
JOHNSON AND JOHNSON PHILS. vs. COURT OF APPEALS

201 SCRA 768 [1991]
FACTS: The CA Johnson and Johnson Philippines a decision in an envelope
by registered mail. After a while, the same envelope was returned to the CA. On
the face of the envelope, it as written, Return to Sender, Unclaimed. On the
back of the envelope, there is an annotation Return to CA.
With that, the CA applied the rule on constructive service considered the
decision as already served. Johnson and Johnson Philippines questioned it. It
never received any notice from the post office. But according to the CA, it is very
obvious. It is there in the envelope still sealed.
ISSUE: Is there proper application of the rules on constructive service?
HELD: There is NO constructive service because there is no certification by
the postmaster that is claimed. This is what the law requires not just a one
sentence statement. One cannot even ascertain who wrote the statement.
Certification should include the details of delivery and not just state that notice
was issued.
A certification from the postmaster would be the best evidence to prove that
the notice has been validly sent. The mailman may also testify that the notice
was actually delivered. The postmaster should certify not only that the notice
was issued or sent but also as to how, when and to whom the delivery thereof
was made.
There is nothing in the records of the present case showing how, when and
to whom the delivery of the registry notices of the subject registered mail of
petitioner was made and whether said notices were received by the petitioner.
The envelope containing the unclaimed mail merely bore the notation RETURN
TO SENDER: UNCLAIMED on the face thereof and Return to: Court of Appeals
at the back. The respondent court should not have relied on these notations to
support the presumption of constructive service.
The case of JOHNSON was reiterated in
SANTOS vs. COURT OF APPEALS
293 SCRA 147 [Sept. 3, 1998]
FACTS: Jesus Santos, was sued for damages on by Omar Yapchiongco before
the CFI. CFI dismissed the complaint for lack of merit. CA reversed and declared
Santos liable for damages.
On 15 June 1995, the decision of the CA was sent by registered mail to
Santos counsel, Atty. Magno. On the same day, the corresponding notice of
registered mail was sent to him. The mail remained unclaimed and consequently
returned to the sender. After 3 notices, the decision was returned to the sender
for the same reason.
On 27 September 1995, a notice of change of name and address of law firm
was sent by Atty. Magno to CA. On 28 March 1996, the same decision of CA was
sent anew by registered mail to Atty. Magno at his present address which he
finally received on 3 April 1996. On 17 April 1996, Magno withdrew his
appearance as counsel for Santos.
On 18 April 1996, Santos new counsel, Atty. Lemuel Santos, entered his
appearance and moved for reconsideration of CA's decision of 6 June 1995.
Yapchiongco opposed the motion on the ground that the period for its filing had
already expired.
HELD: The rule on service by registered mail contemplates 2 situations: (1.)
Actual service - the completeness of which is determined upon receipt by the
addressee of the registered mail; (2.) Constructive service - the completeness of
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Pleadings,
which is determined upon the expiration of 5 days from the date of first notice of
the postmaster without the addressee having claimed the registered mail.
For completeness of constructive service, there must be conclusive proof
that Santoss former counsel or somebody acting on his behalf was duly notified
or had actually received the notice, referring to the postmaster's certification to
that effect.
Here, Santos failed to present such proof before CA but only did so in the
present proceedings. Clearly then, proof should always be available to the post
office not only of whether or not the notices of registered mail have been
reported delivered by the letter carrier but also of how or to whom and when
such delivery has been made.
Consequently, it cannot be too much to expect that when the post office
makes a certification regarding delivery of registered mail, such certification
should include the data not only as to whether or not the corresponding notices
were issued or sent but also as to how, when and to whom the delivery thereof
was made. Accordingly, the certification in the case at bar that the first and
second notices addressed to Atty. Magno had been "issued" can hardly suffice
the requirements of equity and justice. It was incumbent upon the post office to
further certify that said notices were reportedly received.
This last section, Section 14, has something to do with real actions, land titles notice
of lis pendens.
Sec. 14. Notice of lis pendens. In an action affecting the title or the
right of possession of real property, the plaintiff and the defendant, when
affirmative relief is claimed in his answer, may record in the office of the
registry of deeds of the province in which the property is situated a notice of
the pendency of the action. Said notice shall contain the names of the parties
and the object of the action or defense, and a description of the property in
that province affected thereby. Only from the time of filing such notice for
record shall a purchaser, or encumbrancer of the property affected thereby, be
deemed to have constructive notice of the pendency of the action, and only of
its pendency against the parties designated by their real names
The notice of lis pendens hereinabove mentioned may be cancelled only upon
order of the court, after proper showing that the notice is for the purpose of
molesting the adverse party, or that it is not necessary to protect the rights
of the party who caused it to be recorded. (24a, R14)
This used to be in Rule 14 of the 1964 Rules of Court where it was misplaced. I do riot
know why notice of lis pendens which refers to lands, titles and deeds appears under the
rules on Summons. It was misplaced so they place it under Rule 13 which is also
misplaced.
NOTICE OF LIS PENDENS notice of pending action or litigation.
This is part of the Property Registration Law. The essence of notice of lis pendens is a
notice against the whole world against sale or mortgage of the property under litigation.
And whoever deals with it is accepting the risk. Anybody who buys it is gambling an the
outcome of the case. He cannot claim he is the mortgagee or buyer in good faith because
there is a notice.
I will file a case for recovery of a piece of land and the title is in your name. There is a
danger that you will sell the land to others who know nothing about the case. So if I win
the case and try to recover it to the buyer, the buyer will say he bought the land in good
faith, I did not know that there is a pending action concerning this land. And under the
law, he is protected because he is a buyer in good faith and for value. This is if there is no
notice of lis pendens. The other risk is that the owner of the land will mortgage his
property.
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A person buying a property with a notice of lis pendens is buying it subject to the
outcome of the case. So you are gambling.
Now, as GENERAL RULE, the one who registers a notice of lis pendens is the plaintiff.
Exception:
Q: Under Section 14, can the defendant register a notice of lis pendens?
A: YES. The law states that The plaintiff and the defendant may register when
affirmative relief is claimed in this answer. In such case, a defendant may register and
normally it is done when there is a counterclaim. The defendant is also interposing a
defense with the same property.
Take note that the action in this case affects the right of possession over real property.
Q: How is a notice of lis pendens cancelled?
A: GENERAL RULE: The notice of lis pendens under the rules cannot be removed
without the order from the court and generally the court cannot issue the order until the
case is finished or until the final issue of the case is determined.
EXCEPTION: But in some rare instances, the SC has authorized the cancellation of the
notice of lis pendens even when the case is not yet terminated. One of which is
contemplated under Section 14: After proper showing that the notice is: [a] For the
purpose of molesting the adverse party; or [b] It is not necessary to protect the rights of
the party who caused it to be recorded. In the case of
ROXAS vs. DY
233 SCRA 643 [1993]
FACTS : Plaintiff filed a case against the defendant to recover a piece of land
registered in the name and possessed by the defendant. The case has been
going on for more than 1 year, the plaintiff has been presenting evidence he
plaintiff has not yet shown that he has right over the land.
HELD: So there is no more basis of notice of lis pendens because your
purpose is to harass the defendant for over a year litigation without showing
right over the land.
While a notice of lis pendens cannot ordinarily be cancelled for as long as
the action is pending and unresolved, the proper court has the authority to
determine whether to cancel it under peculiar circumstances, e.g., where the
evidence so far presented by the plaintiff does not bear out the main allegations
in the complaint.
published by
LAKAS ATENISTA 1997 1998: FOURTH YEAR: Anna Vanessa Angeles Glenda Buhion Joseph
Martin Castillo Aaron Philip Cruz Pearly Joan Jayagan Anderson Lo
Yogie Martirizar Frecelyn Mejia Dorothy Montejo Rowena Panales Regina Sison
Ruby Teleron Marilou Timbol Maceste Uy Perla Vicencio Liberty Wong Jude Zamora
Special Thanks to: Marissa Corrales and July Romena
SECOND YEAR: Jonalyn Adiong Emily Alio Karen Allones Joseph Apao
Melody Penelope Batu Gemma Betonio Rocky Cabarroguis Charina Cabrera
196

2001 Edition

Pleadings,
Marlon Cascuejo Mike Castaos Karen de Leon Cherry Frondozo Jude Fuentes Maila Ilao
Ilai Llena Rocky Malaki Jenny Namoc Ines Papaya Jennifer Ramos Paisal Tanjili
LAKAS ATENISTA 20012002: REVISION COMMITTEE: Melissa Suarez Jessamyn Agustin

Judee Uy Janice Joanne Torres Genie Salvania Pches Fernandez Riezl Locsin
Kenneth Lim Charles Concon Roy Acelar Francis Ampig Karen Cacabelos
Maying Dadula Hannah Examen Thea Guadalope Myra Montecalvo Paul Ongkingco
Michael Pito Rod Quiachon Maya Quitain Rina Sacdalan Lyle Santos Joshua Tan
Thaddeus Tuburan John Vera Cruz Mortmort
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