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Revised Rules on Summary Procedure

CASES COVERED BY THE RULE


Q.
What are the cases that are governed by the
Rules on Summary Procedure?
A.

The cases covered are the following:

CIVIL CASES:
1) All cases of forcible entry and unlawful
detainer, irrespective of the amount of
damages or unpaid rentals sought to be
recovered. Where atty. fees are awarded the
same shall not exceed twenty thousand pesos
(P20, 000).
2) All other cases, except probate proceedings,
where the total amount of the plaintiffs claim
does not exceed One hundred thousand pesos
(P100, 000) or Two hundred thousand pesos
(P200, 000. 00), exclusive of interests and
costs.
CRIMINAL CASES:
1) Violations of traffic laws, rules and
regulations
2) Violations of rental laws
3) Violations of municipal or city ordinances
4) All other criminal cases where the penalty
prescribed by law for the offense charged is
imprisonment not exceeding 6 months or a
fine not exceeding one thousand pesos
(P1,000) or both, irrespective of other
imposable penalties, accessory or otherwise
or of the civil liability arising there from.
Provided, however, that in offenses involving
damage to property through criminal
negligence, this Rule shall govern where the
imposable fine does not exceed ten thousand
pesos (P10,000).
5) Violation of BP 22.
EFFECT OF FAILURE TO ANSWER
Q.
Can the court declare a defendant for failure to
file an answer, in default if the case is governed by the
Rules on Summary Procedure?

A.
Where no answer is filed, the court may not
declare defendant in default because a motion to
declare defendant in default is a prohibited pleading.
(Lesaca vs. CA 21 Oct 1991)
Q.
X filed an ejectment suit against Y who filed
an answer. Y filed a motion to dismiss in the guise of
a position paper. X objected on the ground that such
motion is a prohibited motion under the Rule on
Summary Procedure. Rule on the objection.
A.
Objection not meritorious. While this is
indeed a prohibited motion (Sec 19[a] of Revised
Rules on Summary Procedure), it should be noted
that the motion was filed after an answer had already
been submitted within the reglementary period. In
essence, therefore, it is not pleading prohibited by the
Rule on Summary Procedure. What the rule prohibits
is a Motion to Dismiss which would stop the running
of the period to file an Answer and cause undue
delay.
Q.
What are the prohibited pleadings and
motions under the Revised Rule on Summary
Procedure?
A.

They are the following:


1) Motion to dismiss the complaint or to quash
the complaint or information except on the
ground of lack of jurisdiction over the subject
matter or failure to comply with referral to
Lupon for conciliation.
2) Motion for a bill of particulars
3) Motion for new trial or for reconsideration of a
judgment or for reopening of trial
4) Petition for relief of judgment
5) Motion for extension of time to file pleadings,
affidavits or any other papers.
6) Memoranda
7) Petition
for
certiorari,
mandamus
or
prohibition against any interlocutory order
issued by the court
8) Motion to declare the defendant in default
9) Dilatory motion for postponement
10) Reply
11) Third-party complaints
12) Interventions.

Q.
In a case for unlawful detainer under the
Revised Rules on Summary Procedure, the MTC
rendered a decision in favor of A, the lessor, ordering
B, the lessee, to vacate As apartment and to pay the
back rentals. B appealed to the RTC which affirmed
MTCs decision. A anticipating another appeal by B,

filed a motion for execution pending appeal pursuant


Sec 21of the Revised Rule on Summary Procedure. B
likewise within the reglementary period filed a petition
for review of the RTCs decision with the CA.
a) May the RTC grant As motion for execution
pending appeal after B filed his petition for
review with the CA? Explain.
b) May B validly oppose the motion for execution
pending appeal on the ground that the motion
is not based on the good reasons for which an
execution pending appeal may be issued
under Sec 2 Rule 39 of the Rules of court.

motion to dismiss on the ground that the compliant


states no cause of action. If you were the judge, how
would you rule on the motion? (1999 Bar Exams)

A.
Yes because the decision of the RTC is
immediately executory despite the appeal (Sec 21
Revised Rules of Summary Procedure)
No because Sec 2 of Rule 39 is not applicable
to this case which falls under Summary Procedure.
Q.
For failure of the tenant, Marivic, to pay
rentals, Letty, the court-appointed administrator of the
estate of Santos Lindawan decides to file an action
against Marivic for the recovery of possession of the
leased premises located in Plaridel, Bulacan and for
the payment of the accrued rentals in the total amount
of P100,000. If the case is filed with the Municipal
Trial Court, is it covered by the Revised Rule of
Summary Procedure?

Q.
Distinguish:
1)
An action IN REM from an action QUASI IN
REM.
2)
An action QUASI IN REM from an action IN
PERSONAM.
3)
An action IN PERSONAM from personal action.
4)
An action IN REM from real action.
5)
A personal action from a local action. (1994
Bar )

A.
Yes it is covered by the Revised Rule on
Summary Procedure because Sec 1 A [1] provides
that All cases of forcible entry and unlawful detainer,
irrespective of the amount of damages or unpaid
rentals sought to be recovered. This is a clear case of
unlawful detainer and the accrued rentals of
P100,000 is immaterial to the application of the
Revised Rule on Summary Procedure.
Q.
Distinguish action from cause of action. (1999
Bar Exam)
A.
An action is one by which a party sues
another for the enforcement or protection of a right or
the prevention or redness of a wrong. (Sec. 3 Rule 1
1997 Rules of Civil Procedure.) A cause of action is
the act or omission by which a party violates a right
of another. ( Sec 2 Rule 2 of 1997 Rules. An action
must be based on a cause of action. (Sec. 1 Rule 2 of
1997 Rules)
Q.
A sued B to recover P500,000 based from a
promissory note due and payable on 5 Dec. 1995. The
compliant was filed on 30 Nov. 1998 and summons
was served on B on 7 Dec. 1998. B interposes a

A.
If I were the judge, I would grant the motion
on the ground that the compliant states no cause of
action. When the complaint was filed, the promissory
note was not yet due and demandable and hence the
complaint was filed prematurely. This defect was not
cured by the service of the summons on the
defendant after the date when the promissory note
became due and payable.

A.
An action IN REM is an action against all who
might be minded to make an objection of any sort
against the right sought to be established. While an
action QUASI IN REM is an action against an
individual although the purpose of the suit is to
subject his interest in a particular property to the
obligation or lien burdening the property. The
judgment rendered in actions IN REM binds the
whole world, while the judgment rendered in actions
QUASI IN REM is conclusive only between the
parties.
An action QUASI IN REM, as stated is an
action against a person over a particular property or
claims relating thereto, while an action in
PERSONAM is an action to establish a claim against
a person with a judgment that binds him personally.
An action in PERSONAM, as stated, is an
action against a person on the basis of his personal
liability while a personal action is an action where
the plaintiff seeks the recovery of personal property,
the enforcement or the resolution of a contract or the
recovery of damages.
An action IN REM is an action against all who
might be minded to make an objection of any sort
against the right sought to be established, while a
real action is an action affecting title to real property
or for the recovery of possession or for partition or
condemnation of or foreclosure of a mortgage on real
property.

A personal action is an action where the


plaintiff seeks the recovery of personal property, the
enforcement or resolution of a contract or the
recovery of damages, while a local action is that
which must be brought in a particular place.
Plaintiff in a personal action may file it in the place
where he resides or where the defendant resides
while in a local action, plaintiff has no choice except
to file the action in the place where the property is
located.
Q.
Distinguish
civil
actions
proceedings. (1998 Bar Exam)

from

special

A.
A civil action is one by which a party sues
another for the enforcement or protection of the right
or the prevention or redress of a wrong, (Sec 3(a) Rule
1, 1997 Rules of Civil Procedure), while a special
proceeding is a remedy by which a party seeks to
establish a status, a right or a particular fact. (Sec
3(c) Rule 1)
Q.
Ruby filed a collection of sum of money case
against Grany on April 18, 2003, which the later
contested when she filed her answer during the
reglementary period. Ruby filed an amended
compliant impleading Mildred as additional defendant
upon a motion properly filed on May 23, 2003. When
is the civil action deemed commence?
A.
As to Grany, the original defendant, the civil
action is deemed commenced on April 18, 2003. But
with regard to Mildred, the additional defendant, it is
deemed commenced on May 23, 2003. A civil action
is commenced by the filing of the original compliant
on court. If the additional defendant is impleaded in
a later pleading the action is commenced with regard
to him on the date of the filing of such later pleading,
irrespective of whether the motion for its admission,
if necessary, is denied by the court. (Sec 5 Rule 1,
1997 Rules of Civil Procedure)
Q.
How shall the Rules of Court be construed
(1998 Bar Exams)
A.
The Rules of Court should be liberally
construed in order to promote their objective of
securing a just, speedy, and inexpensive disposition
of every action and proceeding. (Sec 6, Rule 1 1997
Rules of Civil Procedure)
However, strict observance of the rules is an
imperative necessity when they are considered
indispensable to the prevention of needless delays

and to an orderly and speedy dispatch of judicial


business (Alvero vs. Judge dela Rosa, 76 Phil 428
and other cases)
Q.
What are the kinds of actions for the recovery
of possession of real property ? Explain each.
A.

The kinds of actions are the following:


The summary action for forcible entry and
unlawful detainer forcible entry is a summary
action to recover material or physical possession of
real property when the person who originally held it
was deprived of possession by force, intimidation,
strategy, threat or stealth. An action for unlawful
detainer, on the other hand may be filed when
possession by a land lord, vendor, vendee or other
person against whom the possession of any land or
building is unlawfully withheld after the expiration or
termination of the right to hold possession, by virtue
of contract, express or implied. Both actions may be
filed with the municipal trial court within one year
after unlawful deprivation or withholding of
possession.
Accion publiciana is the plenary action to
recover the right of possession when dispossession
has lasted for more than one year or when
dispossession was affected by means other than
those mentioned under Rule 70 of the Rules of
Court.
Q.
Define Cause of Action and give its essential
elements.
A.
A cause of action is defined as an act or
omission of one party in violation of the legal right or
rights of another. Its essential elements are:
1) legal right of the plaintiff:
2) correlative obligation of the defendant and
3) an act or omission of the defendant on
violation of said legal right.
There must be damage or prejudice otherwise,
no right of action arises in favor of plaintiff.
Q.
Butch purchased a lot from Cosme for P1.5M.
he gave a down payment of P500,000, signed a
promissory note payable for 30 days after date, and
as
security for the settlement of the obligation,
mortgaged the same lot to Cosme. When the note fell
due and Butch failed to pay Cosme commended suit to
recover from Butch the balance of P1M. After securing
a favorable judgment on his claim, Cosme brought
another action against Butch before the same court to
foreclose the mortgage. Butch now files a motion to

dismiss the second action on the ground of bar by


prior judgment. Rule on the motion. (1999 Bar Exams)
A.
The motion to dismiss should be granted.
When Cosme commenced suit to collect on the
promissory note, he waived his right to foreclose the
mortgage. He split his cause of action which he
cannot validly do.
Q.
What is the rule against splitting a cause of
action and its effect on the respective rights of the
parties for failure to comply with the same? (1999 and
1998 Bar Exams)
A.
The rule against splitting a cause of action
and its effect are that if two or more suits are
instituted on the basis of the same cause of action,
the filing of one or a judgment upon the merits in
any one is available as a ground for dismissal of the
other, the ground for dismissal is either lis pendens
(if the actions are still pending) or res judicata (if the
judgment in one case has already become final. (Sec
4 Rule 2 of 1997 Rules.
Q.
Marife secured two loans from Nimfa, one for
P500,000 and the other for P1,000,000 payable on
different dates. Both have fallen due. Is Nimfa obliged
file only one compliant against Marife for the recovery
of both loans. Explain. (1999 Bar Exams)
A.
No. Joinder is only permissive since the loans
are separate loans which may be governed by
different terms and conditions. The two loans give
rise to two separate causes of action and maybe the
basis of two separate complaints.
Q.
What is the rule on joinder of causes of action?
( 1999 Bar Exams)
A.
The rule on joinder of causes of action is that
a party may in one pleading assert, in the alternative
or otherwise, as many causes of action as he may
have against an opposing party, provided that:
1) the rule on joinder of parties is complied with
2) the joinder should not include special civil
actions or actions governed by special rules
3) where the causes of action are between the
same parties but pertain to different venues
or jurisdictions, the joinder maybe allowed in
the Regional Trial Court provided one of the
causes of action falls within the jurisdiction of
said court and the venue lies therein

4) Where the claims in all the causes of action


are principally for recovery of money, the
aggregate amount claimed shall be the test of
jurisdiction. (Sec. 5 Rule 2 1997 Rules)
Q.
May a complaint be dismissed on the ground
of misjoinder of causes of action?
A.
No. Misjoinder of causes of action is not a
ground for dismissal of an action. Misjoined causes
of action may, on motion of a party or on the
initiative of the court, be severed and proceeded with
separately. (Sec. 6 Rule 2 1997 Rules)
Q.
Distinguish joinder of causes of action from
joinder of parties. (1996 Bar Exams)
A.
Joinder of causes of action maybe made in
the same complaint by one party against another, the
totality of the demand determines jurisdiction of the
court.
But in cases of joinder of causes of action by
or against several parties, the right to relief must
arise out of the same transaction or series of
transactions and there must be a common question
of fact or law. If these requisites are present, the
totality of the demand determines the jurisdiction of
the court.
Q.
The complaint filed before the RTC of Candon
City states two (2) causes of action, one for rescission
of contract and the other for the recovery of P100,000
both of which arose out of the same transaction. Is the
joinder of the two causes of action proper? Explain.
(1996 Bar Exams.)
A.
Yes, since the first cause of action for
rescission of contract falls within the jurisdiction of
the RTC of Candon City, because the subject is
incapable of pecuniary estimation and the second
cause of action for recovery of P100.000 is within the
jurisdiction of a lower court and arose out of the
same transaction, both may be joined in the
complaint filed with the RTC.
Q.

Who may be parties to a civil action?

A.
Parties to a civil action are the plaintiff and
defendant. Persons having an interest in the subject
of the action and in obtaining the relief demanded
maybe plaintiffs. Persons claiming an interest in
controversy adverse to the plaintiffs maybe
defendants.

Parties should be (1) natural persons, (2)


juridical persons (3) entities authorized by law to be
parties such as labor organizations and entities
without legal personality when sued as defendants.
(Sec. 1 Rule 3 1997 Rules)

A.
A real party in interest is the party who
stands to be benefited or injured by the judgment in
the suit, or the party entitled to the avails of the suit.
Unless otherwise authorized by law or these Rules,
every action must be prosecuted or defended in the
name of the real party in interest. (Sec 2 Rule 3 of
1997 Rules)

A.
No the action will not prosper. In an action for
recovery of parcels of land, which had already been
subdivided and conveyed to lot buyers, the latter are
indispensable parties and their having been not
impleaded as defendants renders the judgment and
all proceedings therein held null and void for want of
authority on the part of the court to act not only as
to the absent parties but also as to the present. Sec.
7, Rule 3 of 1997 Rules provides that parties in
interest without whom no final determination can be
had of an action shall be joined either as plaintiffs or
defendants. Failure to include indespensable parties
is a ground for dismissal of action.
Q.
Who is a necessary party?

Q.
Mr. Garcia, an attorney-in-fact of Mr. Ringor
prosecuted a case in favor of the latter without
including Mr. Ringor. The defendant Mr. Galang filed a
motion to dismiss on the ground that the complaint
states no cause of action. Rule on the motion.

A.
A necessary party is one who is not
indispensable but who ought to be joined as a party
if complete relief is to be accorded as to those already
parties or for a complete determination or settlement
of the claim subject of the action.

A.
Motion should be granted. The attorney in
fact is not a real party in interest hence cannot
prosecute the case only in his name. The complaint
should include Mr. Ringor as real party in interest.
Where action is allowed to be prosecuted or defended
by a representative or someone acting in a fiduciary
capacity, the beneficiary shall be included in the title
of the case and shall be deemed to be the real party
in interest. (Sec. 2 and 3 Rule 3 1997 Rules)

Q.
Distinguish
parties.

Q.

Q.

Who is a real party in interest?

When is permissive joinder of parties proper?

A.
Permissive joinder of parties is proper when
the following requisites are present:
1) The persons in whom or against whom any
right to relief in respect to or arising out of
the same transaction or series of transaction
or series of transactions is alleged to exist,
whether jointly or severally or in the
alternative, may join as plaintiffs or be joined
as defendants in one complaint ; and
2) There is a question of law or fact common to
all such plaintiff or to all such defendants in
the action. (Sec. 6 Rule 3 1997 Rules)
Q.
Balbin
Subdivisions
Inc.
developed,
subdivided and conveyed to lot buyers parcels of land
in a subdivision owned by it. Mr. Pre claiming as
owner of the whole subdivision filed a case against
Balbin Subdivision Inc. for recovery of real properties.
Will the action prosper?

indispensable

and

necessary

A.
A proper party or necessary party is one
which ought to be a party if complete relief is to be
accorded as between those already parties.
An indispensable party is a party who must
be made a party either as plaintiff or defendant if
final determination can be had of an action.
In other words, a necessary party need not be
joined as party litigant and the court can still
adjudicate the controversy as between the parties
already in court.
On the other hand, an indispensable party
must be joined under all circumstances to enable the
court to resolve the dispute; otherwise the case must
be dismissed.
Q.
Give the effect of the non-joinder of a
necessary party. (1998 Bar Exams)
A.
The effect of the non-joinder of a necessary
party may be stated as follows: the court may order
the inclusion of an omitted necessary party if
jurisdiction over his person may be obtained.
The failure to comply with the order for his
inclusion without justifiable cause is a waiver of the
claim against such party.
The court may proceed with the action but
the judgment rendered shall be without prejudice to

the rights of such necessary party. (Sec. 9 Rule 3


1997 Rules of Civil Procedure)
Q.

What is the rule in cases of unwilling plaintiff?

A.
An unwilling plaintiff who is a real or
indispensable party should be impleaded as
defendant and the reason therefore stated in the
complaint. (Sec. 10 Rule 3 1997 Rules)
Q.
Is misjoinder and non-joinder of parties a
ground for dismissal of an action?
A.
Neither misjoinder nor non-joinder of parties
is ground for dismissal of an action.
Parties may be dropped or added by order of
the court on motion of any party or on its own
initiative at any stage of the action and on such
forms as are just.
Any claim against a misjoined party may be
severed and proceeded with separately. (Sec. 11 Rule
3 1997 Rules)
Q.
A.

What are the requisites of a class suit?


The following are the requisites of a class suit:
1) The subject matter in controversy is of
common or general interest to many persons
2) There is only one right or cause of action
pertaining or belonging in common to many
persons, not separately or severally to
distinguish the individuals
3) The parties are so numerous that it would be
impracticable to bring them before the court.

Q.
Francisca filed a complaint for the recovery of
ownership of land against Santos who was
represented by his counsel Romeo. In the course of
trial Santos died. However Romeo failed to notify the
court of Santoss death.
The court proceeded to hear the case and
rendered judgment against Santos. After judgment
became final, a writ of execution was issued against
Cosme, who being Santos sole heir, acquired the
property.
(1)
If you were counsel of C, what course of action
would you take?
(2)
Did the failure of Romeo to inform the court of
Santoss death constitute direct contempt? (1998 Bar
Exams)
A:
As counsel of Cosme, I would move to set
aside the writ of execution and the judgment for lack

of jurisdiction and lack of due process in the same


court because the judgment is void. If X had notified
the court of Bs death, the court would have ordered
the substitution of the deceased by Cosme, the sole
heir of Santos. (Sec. 16 Rule 3 of 1997 Rules of Civil
Procedure)
The court acquired no jurisdiction over Cosme
upon whom the trial and the judgment are not
binding. I could also file an action to annul the
judgment for lack of jurisdiction because Cosme, as
the successor of Santos was deprived of due process
and should have been heard before judgment.
No. It is not direct contempt under Sec. 1
Rule 71 but it is indirect contempt within the
purview of Sec. 3 of Rule 71. The lawyer can also be
the subject of disciplinary action. (Sec. 16 Rule 3
1997 Rules of Civil Procedure.)
Q.
What is the duty of the counsel if his client
dies during the pendency of a case?
A.
Whenever a party to a pending action dies,
and the claim is not thereby extinguished, it shall be
the duty of his counsel to inform the court within
thirty (30) days after such death of the fact thereof,
and to give the name and address of his legal
representative or representatives.
Failure of counsel to comply may subject him
to disciplinary action. (Sec. 16 Rule 3 1997 Rules)
Q.
What is the rule in cases of transfer of
interests?
A.
In case of any transfer of interest, the action
maybe continued by or against the original party,
unless the court upon motion directs the person
whom the interest is transferred to be substituted in
the action or joined with the original party.
Q.
When A (buyer) failed to pay the remaining
balance of the contract price after it became due and
demandable, B (seller) sued him for collection before
the RTC. After both parties submitted their respective
evidence, A perished in a plane accident.
Consequently, his heirs brought an action for the
settlement of his estate and moved for the dismissal of
the collection suit.
(1)
Will you grant the motion? Explain.
(2)
Will your answer be the same if A died while
the case is already on appeal to the CA? Explain.
(3)
In the same case, what is the effect if B died
before the RTC has rendered judgment? ( Bar Exams)

A.
No, because the action will not be dismissed
but shall instead be allowed to continue until entry of
final judgment.
No, if A died while the case was already on
appeal in the court of Appeals, the case will continue
because there is no entry yet of final judgment.
The effect is the same. The action will not be
dismissed but will be allowed to continue until entry
of final judgment. (Sec. 20 Rule 3 1997 Rules)
Q.
What is the rule to be observed in case of
death of the obligor if there are claims against him?
A.
If it is a money claim arising from contract,
express or implied the following rule should be
observed: (1) If the obligor dies before an action could
be filed against him, the obligee will have to file a
money claim with the probate court: (2) If the action
has already been instituted against the obligor, and
he dies before entry of final judgment in the court in
which the action is pending at the time of such
death, the action shall not be dismissed but shall
instead be allowed to continue until entry of final
judgment.

Martinez vs. Pp. May 31, 2000

The plaintiff can then file it as a money claim


based on judgment in the probate court. If it is a
claim that does not arise from contract, such as a
claim for damages for injury to person or property:
(1) if the obligor dies before an action could be filed
against him an ordinary action may be filed against
his executor or administrator (2) if the obligor dies
after an action has already been instituted against
him, the action will continue until final judgment.
The judgment may be executed against his executor
or administrator.
Q.
What is the rule in the case of indigent party or
pauper litigants?
A.
A party may be authorized to litigate his
action, claim or damages as an indigent if the court,
upon an ex parte application and hearing, is satisfied
that the party is one who has no money or property
sufficient and available for food, shelter and basic
necessities for himself and his family. The amount of
the docket and other lawful fees which the indigent
was exempted from paying shall be a lien on any
judgment rendered in the case favorable to the
indigent, unless the court otherwise provides. (Sec.
21 Rule 3 1997 Rules of Civil Procedure)

A motion to litigate as an indigent can be


made even before the appellate court either for the
prosecution of appeals, in petitions for review or in
special civil actions. (Martinez vs. Pp. May 31, 2000.)
Q.
When is Solicitor
required by the Rules?

Generals

appearance

A.
In any action involving the validity of any
treaty, law, ordinance, executive order, presidential
decree, rules or regulations, the court, in its
discretion, may require the appearance of the
Solicitor General who may be heard in person or
through a representative duly designated by him.
Q.
Joyce a resident of Pangasinan sued Jeff, a
resident of San Fernando City, La Union in the RTC of
Quezon City for the collection of a debt of P1M.
Jeff did not file a motion to dismiss for
improper venue but raised it as an affirmative defense
in his answer. Rule on the affirmative defense of
improper venue.
A.
There is improper venue. The case for sum of
money which was filed in Quezon City, is a personal
action. It must be filed in the residence of either the
plaintiff, which is Pangasinan, or of the defendant
which is San Fernando City, at the election of
plaintiff (Sec. 2 Rule 4 of 1997 Rules of Civil
Procedure). The fact that it was not raised in a
motion to dismiss does not matter because the rule
that if improper venue is not raised in a motion to
dismiss it is deemed waived was removed from the
1997 Rules of Civil Procedure. The new rules
provided that if no motion to dismiss has been filed,
any of the grounds for dismissal may be pleaded as
an affirmative defense in the answer. (Sec. 6 Rule 16
of 1997 Rules)
Q.
Jessa, a resident of Angeles City, borrowed
P300,000 from Kimjer, a resident of Pasay City. In the
loan agreement, the parties stipulated that the
parties agree to sue and be sued in the City of
Manila.
(1)
In case of non-payment of the loan, can Kimjer
file his complaint to collect the loan from Jessa in
Angeles City?
(2)
Suppose the parties did not stipulate in the
loan agreement as to venue, where can Kimjer file his
complaint against Jessa?
(3)
Supposed the parties stipulated in their loan
agreement that venue for all suits arising from this
contract shall be the courts of Quezon City, can

Kimjer file her complain against Jessa in Pasay City?


(1997 Bar Exams)
A:
Yes because the stipulation in the loan
agreement that the parties agree to sue and be sued
in the City of Manila does not make Manila the
exclusive venue thereof (Sec. 4 Rule 4). Hence,
Kimjer can file her complaint in Angeles City where
the resides (Sec. 2 Rule 4 of 1997 Rules).
If the parties did not stipulate on the venue,
Kimjer can file complaint either in Angeles City where
Jessa resides or Pasay City where she resides.
NO. If the parties stipulated that the venue
shall be in the courts in Q.C. Kimjer cannot file her
complaint in Pasay City because of the word shall
makes Quezon City the exclusive venue thereof.
Q.
Josie, a resident of Laoag City file a case for
recovery of ownership of a parcel of land with an
assessed value of P200,000 located at Vigan City
against Crisel, a resident of La Union. Where the case
shall be filed?
A.
The case should be filed with the RTC of
Vigan City because the action is a real action. Sec. 1
Rule 4 provides that Actions affecting title to or
possession of real property, or interest therein, shall
be commenced and tried in the proper court which
has jurisdiction over the area wherein the real
property involved, or a portion thereof is situated.
Forcible entry and detainer actions shall be
commenced and tried in the MTC of the municipality
or city wherein the real property involved, or a
portion thereof is situated.
Q.

Where is the venue of personal actions?

A.
All other actions may be commenced and
tried where the plaintiff or any of the principal
plaintiff resides, or where the defendant or any of the
principal defendants resides or in the case of nonresident defendant where he may be found, at the
election of the plaintiff.
Q.
David married Fely on June 18,1995 at
Candon City, Ilocos Sur. In April 1997 Fely went to the
United States and never returned to the Philippines.
They have no communication since then. David filed
an annulment case against Fely at the RTC of Candon
City where he resides. Is the action properly filed?
A.
Yes. Sec. 3 Rule 4 provides that If any of the
defendants does not reside and is not found in the

Philippines, and the action affects the personal


status of the plaintiff, or any property of said
defendant located in the Philippines, the action may
be commenced and tried in the court of the place
where the plaintiff resides, or where the property or
any portion thereof is situated or found.
Q.

What is venue?

A.
Venue of action is the place where the action
is to be tried, whether real or personal. Venue relates
to place of trial, not to jurisdiction, touches more on
the convenience of the parties rather than the
substance of the case.
Q.

Distinguish venue from jurisdiction.

A.
Venue refers to the place where the action is
to be instituted, jurisdiction refers to the authority of
the court to try and decide the case. Venue may be
waived; jurisdiction (as to subject matter cannot be
waived. Venue may be the subject of a written
agreement between the parties; jurisdiction cannot
be the subject of the written agreement between
parties.
Q.

What are pleadings?

A.
Pleadings are the written statements of the
respective claims and defenses of the parties
submitted to the court for appropriate judgment.
(Sec. Rule 6 of 1997 Rules)
Q.

What is a complaint?

A.
A complaint is the pleading containing the
plaintiffs cause or causes of action. The names and
residences of the plaintiff and defendant must be
stated in the complaint. (Sec. 3 rule 6 of 1997 Rules
of Civil Procedure) The complaint should inform the
defendant of all the material facts on which the
plaintiff relies to support his demand, it should state
the theory or cause of action which forms the bases
of the plaintiffs claim of liability.
Q.

What is an answer?

A.
An answer is a pleading which a defendant
files against the complaint and raises defenses to
defeat the claim against him; he may also; in the
answer, raise counter claims against the plaintiff.
Q.

What are the kinds of defenses? Explain each

.
A.
Defenses may either be negative or
affirmative. A negative defense is the specific denial
of the material fact or facts alleged in the pleading of
the claimant essential to his cause or causes of
action. An affirmative defense is an allegation of a
new matter which, while hypothetically admitting the
material allegations in the pleading of the claimant,
would nevertheless prevent or bar recovery.
Q.
What should the defendant do in cases where
an action is based on an actionable document?
A.
The claim or defense should be denied
specifically under oath, otherwise the genuineness
and due execution of a written instrument copied in
or attached to a pleading are deemed admitted.

arises out of or is connected with the transaction or


occurrence constituting the subject matter of the
opposing partys claim and does not require for its
adjudication the presence of third parties of whom
the court can not acquire jurisdiction. If Leas claim
is not set up in the suit filed by Aya, the claim is
barred. (Sec.7 Rule 6 1997 Rules of Civil Procedure)
Q.
Is a motion to dismiss with counter claim
sanctioned by the rules of Court? (1992 BAR Exams)
A.
No, because a counter claim is contained in
an answer and not in a motion to dismiss.
What the defendant should do is to plead the
ground of his motion to dismiss as an affirmative
defense in his answer together with his counter
claim.

Q.
Maui filed an action against Tracy for recovery
of possession of a piece of land. Tracy in her answer
specifically denied Mauis claim and interposed as a
counter claim the amount of Php 150,000. 00 arising
from another transaction, consisting of the price of the
car he sold and delivered to Maui and which the latter
failed to pay. Is Tracys counter claim allowed under
the rules? Explain. (1996 BAR Exams)

Q.

A.
Tracys counter claim is a permissive counter
claim in as much as it arises out of another
transaction that is the subject matter of its
complaint. It is allowed if it is within the jurisdiction
of the court.

A.
The following are the requisites of a counter
claim.
1) It arises out of, or is necessary connected
with the transaction or occurrence that is the
subject matter of the opposing partys claim.
2) It does not require for its adjudication the
presence of third parties of whom the court
cannot acquire jurisdiction.
3) It must be cognizable by the regular courts of
justice.
4) It must be within the jurisdiction of the court
both as to amount and the nature thereof,
except that in an original action before the
RTC, the counter claim is considered
compulsory regardless of the amount thereof;
5) It must already be existing at the time the
defending party files his answer. (Sec. 7 Rule
6 of the 1997 Rules of Civil Procedure)

Alternative Answer:
The question does not state in what court
Maui filed the action. If the assessed value of the
property does not exceed Php 20,000. 00 the action
may be filed in the MTC in which case the counter
claim of Php 150,000. 00 may be allowed in as much
as it is within its jurisdiction.
Q.
Aya sues Lea for recovery of a tract of land.
Lea seeks in turn to be reimbursed the value of
improvements she has introduced in the same land
and the payment of damages she has sustained.
Should Lea file a separate action against Aya for that
purpose? (1996 BAR Exams)
A.
No. Leahs claim cannot be made in a
separate action. It is a compulsory counter claim in
the suit filed by Aya against Lea for the recovery of
the land. A compulsory counter claim is one which,
being cognizable by the regular courts of justice,

What is a counter claim?

A.
A counter claim is any claim which a
defending party may have against an opposing party.
(Sec. 6 Rule 6 1997 Rules)
Q.
Give the requisites of compulsory counter
claim?

Q.
B and C borrowed P400, 000.00 from A. The
promissory note was executed by B and C in a joint
and several capacity. B who received the money from
A, gave C P200, 000.00. C in turn loaned P100,
000.00 out of the P200, 000.00 he received, to D.

1.) In an action filed by A against B and C with


the RTC, can B file a cross-claim against C for the
amount of P200, 000.00?
2.) Can C file a third party complaint against D
for the amount of P100, 000.00? (1997 Bar Exams)
A.
Yes, B can file a cross-claim against C for the
amount of P200,000 given to C. A cross-claim is a
claim filed by one party against a co-party arising out
of the transaction or occurrence that is the subject
matter either of the original action or of a counter
claim therein. Such cross-claim may include a claim
that the party against whom it is asserted is or may
be liable to the cross-claimant for all or part of the
claim asserted in the action against the crossclaimant. (Sec. 8 Rule 6 1997 Rules)
Yes, C can file a third party complaint against
D because the loan of P100,000 was taken out of the
P200,000 received from B and hence the loan seeks
contribution in respect to his opponents claim. (Sec.
11 Rule 6 of 1997 Rules)

Q.

What is a third-party complaint?

A.
A third-party complaint is a claim that a
defending party may with leave of court; file against a
person not a party to the action, called the thirdparty defendant for contribution, indemnity,
subrogation or any other relief, in respect to his
opponents claim. (Sec. 12 Rule 6 1997 Rules)
Q.
When
disallowed?

may

third-party

complaint

be

A.
In the following cases, a third-party complaint
may be disallowed:
1) When the resolution of the main case would
be delayed as when the third-party defendant
cannot be located.
2) When there are extraneous matters that
would be raised
3) When the main action is for declaratory relief.

Q.
A assembles an owner-type jeep for B who in
turn rents it to X. Due to faulty brakes, X figures in a
vehicular accident causing him severe injuries. X files
an action for damages against A and B. May B file a
third-party complaint against A for indemnity?
Explain. (1996 Bar Exams)
A.
No, because what B should file is a crossclaim against his co-defendant A. third-party
complaint is not available because both A and B are
made defendants in the case.

Q.
Cesar Antonio Surla and wife Evangeline filed
a complaint for damages against Santo Tomas
University Hospital alleging that their son suffered
damages when he fell from the hospitals incubator.
The hospital filed an answer alleging counter claims of
unpaid hospital bills and professional fees of the
doctors as well as moral and exemplary damages
against plaintiffs without a certificate of non-forum
shopping. State the effects of failure to submit a nonforum shopping certificate. Explain.

Q.

A.
It depends. A certificate of non-forum
shopping is not necessary with respect to the counter
claim for moral and exemplary damages because the
same is not an initiatory pleading. Such certificate is
necessary only when the pleading is initiatory. The
reason for the rule is that, the counter claim is
merely auxiliary to the proceedings. The
counter
claim for the unpaid hospital bills however, is an
initiatory pleading as it serves as an independent
claim. The same did not arise out of the same
transaction or occurrence that is the subject matter
of plaintiffs complaint which is the alleged negligence
of hospital employees. The hospitals claim arose out
of contract.

What is a reply?

A.
A reply is a pleading, the office or function of
which is to deny, or allege facts in denial or avoidance
of new matters alleged by way of defense in the
answer and thereby join or make issue as to such
new matters. (Sec. 10 Rule 6 1997 Rules)
Q.
A, after he files his complaint wants to allege
claims arising out of new matters, how will A plead
such new matters?
A.
A should set forth the new matters in an
amended or supplemental complaint.
Q.

What is the effect if there is no reply filed?

A.
If a party does not file a reply, all matters
alleged in the answer are deemed controverted. (Sec.
10 Rule 6 1997 Rules)

Q.
BA Savings Bank filed a petition for certiorari
with the CA with a certificate of non-forum-shopping
signed by its lawyer. It was dismissed by the CA on
that ground. It filed a motion for reconsideration
attaching thereto a corporate secretarys certificate

authorizing its lawyer to represent it in the action and


to sign, execute and deliver a certificate of non-forum
shopping. The motion was denied on the ground that
the rule requires that it is the petitioner, not the
counsel, who must sign the certificate. Is the ruling
correct? Why?
A.
No, the certificate of non-forum-shopping may
be signed for and in behalf of a corporation,
specifically by a lawyer who has personal knowledge
of the facts required to be disclosed in such
document. Corporations perform physical actions
only through properly delegated individuals like its
officers or agents. In case of natural persons, the
rule requires the parties themselves to sign the
certificate of non-forum-shopping. However, such
does not apply to corporations. There is no
circumvention if the certificate was signed by the
corporations authorized counsel, who had personal
knowledge of the matters required by the rule.
Q.
What is the effect of an unsigned pleading? Is
the rule absolute? Why?
A.
An unsigned pleading produces no legal
effect. However the court may, in its discretion, allow
such deficiency to be remedied if it shall appear that
the same was due to mere inadvertence and not
intended for delay (Sec. 3 Rule 7 of 1997 Rules). This
is because the requirement as to the signature of a
lawyer is mere formal requirement which can be
cured.
Q.

What is the effect of an unverified pleading?

A.
It shall be treated as an unsigned pleading. In
fact this is also the effect if the verification contains a
verification based on information and belief or upon
knowledge, information and belief. The rule is so
because the Rules require that a pleading is verified
by an affidavit that the pleading and the allegations
therein are true and correct of his personal
knowledge or based on authentic records. (Sec. 4
Rule 1997 Rules)
Q.
What is forum-shopping? What are the
sanctions imposed for its violation? (1996 Bar Exams)
A.
Forum-shopping is the filing of multiple
petitions, complaints or other initiatory pleadings
involving the same issues in the SC, CA or other
tribunals or agencies, for the purpose of securing a
favorable judgment with the result that said courts,
tribunals or agencies have to resolve the same issues.

Any violation thereof shall be a cause for the


dismissal of the complaint, petition, application or
other initiatory pleading, upon motion and after
hearing. However, any clearly, willful and deliberate
forum shopping by any party and his counsel
through the filing of multiple complaints or other
initiatory pleadings to obtain favorable action shall
be a ground for summary dismissal thereof and shall
constitute direct contempt of court. Furthermore, the
submission of false certification or non-compliance
with the undertaking therein, shall constitute
indirect contempt of court, without prejudice to
disciplinary proceedings against the counsel and
filing of a criminal action against the guilty party.
(Sec. 5 Rule 7 1997 Rules)
Q.
What is the significance of a
signature in a pleading? (1996 Bar Exams)

counsels

A.
The signature of counsel constitutes a
certificate by him that he has read the pleading; that
to the best of his knowledge, information and belief
there is a good ground to support it; and that it is
not interposed for delay. (Sec. 5 Rule 7 of 1997 Rules)
Q.
Who must execute the certification against
forum shopping?
A.
The certification against forum shopping must
be executed by the party and not his counsel. Where
there are several plaintiffs or petitioners, the
certification against forum shopping must be signed
by all of them.
Q.
The complaint alleged that the defendant acted
in bad faith, arbitrarily, wrongfully, and in violation of
law. However it did not contain any averment of facts
constituting plaintiffs cause of action. Does the
complaint state a cause of action? Explain.
A.
No, because it does not state the ultimate
facts constituting the plaintiffs cause of action. The
allegations that the defendant acted in bad faith,
arbitrarily, illegally, wrongfully and in violation of law
are mere conclusions of fact or conclusions of law.
Alternative Answer:
Yes, if the complaint alleges ultimate facts
and states that the acts were done in bad faith,
arbitrarily, illegally, wrongfully and violation of law.
The rule allows malice, intent, knowledge or other
condition of mind to be averred generally. (Sec. 5
Rule 8 of 1997 Rules)
Q.
How may a party plead an actionable
document?

A.
The following are the ways of pleading on
actionable document:
1) by setting forth the substance of such
document in the pleading and attaching the
original or copy of said document thereto as
annex or
2) by setting forth said document verbatim in
the pleading (Sec. 7 Rule 8 1997 Rules)
Q.
Dalaodao Restaurant entered into a contract
with Mr. Butch for the latter to deliver vegetables to the
former. Mr. Butch contacted Malag Vegetables Products
in order to get the needed vegetables. However due to
low produce of vegetables, Mr. Butch wasnt able to
deliver the ordered vegetables. Due to damages
suffered, Dalaodao Restaurant sued Mr. Butch and
Malag Veg. Products and used the contract as basis of
the claim. What should the defendants do in order to
resist the claim?
A.
Sec. 8 Rule 8 of the 1997 Rules of Civil
Procedure provides that Whenever an action or
defense is based upon a written instrument or
document, copied in or attached to the corresponding
pleading, the genuineness and due execution of the
instrument shall be deemed admitted unless the
adverse party under oath, specifically denies them
and sets forth what he claims to be the facts; but the
requirement of an oath does not apply when the
adverse party does not appear to be a party to the
instrument or when compliance with an order for an
inspection of the original is refused.
Mr. Butch should specifically deny under oath
the genuineness and due execution of the contract
but such requirement does not apply to Malag
Vegetable Product because it was not a party to the
contract.

claimant such relief as his pleading may warrant


unless the court in its discretion requires the
claimant to submit evidence. The party in default
cannot take part in the trial but shall be entitled to
notice of subsequent proceedings (Sec. 3[A] Rule 9 of
1997 Rules)
Q.
For failure to seasonable file his answer
despite due notice, A was declared in default in a case
instituted against him by B. The following day, As
mistress who is working as a clerk in the sala of the
judge before whom his case is pleading, informed him
of the declaration of default. On the same day, A
presented a motion under oath to set aside the order
of default on the ground that his failure to answer was
due to fraud and he has a meritorious defense.
Thereafter he went abroad. After his return a week
later, with the case still undecided, he received the
order declaring him in default. The motion to set aside
default was opposed by B on the ground that it was
filed before A received notice of his having been
declared in default, citing the rule that the motion to
set aside may be made at anytime after notice but
before judgment. Rule on the motion to set aside order
of default.
A.
Assuming that the motion to set aside
complies with the other requirements of the rule, it
should be granted. Although such a motion may be
made after notice but before judgment (Sec. 3 [B]
Rule 9) with more reason it may be filed after
discovery even before receipt of the order of default.
Q.
What are the available remedies of a party
declared in default?
(1)
(2)
(3)

Before the rendition of judgment?


After judgment but before finality?
After finality of judgment? (1998 Bar Exams)

Q.
When may a party be declared in default?
(1999 Bar Exams)

A.
The available remedies of a party declared in
default are as follows:

A.
A party may be declared in default when he
fails to answer within the time allowed therefore and
upon motion of the claiming party with notice to the
defending party, and proof of such failure to answer.
(Sec. 3, Rule 9 of the 1997 Rules)

1) Before the rendition of judgment (a) he may


file a motion under oath to set aside the order
of default on the grounds of fraud, accident,
mistake, excusable negligence and that he
has meritorious defense (Sec. 3 [b] Rule 9
1997 Rules) and if it is denied, he may move
to reconsider, and if reconsideration is denied,
he may file the special civil action of certiorari
for grave abuse of discretion tantamount to
lack or excess of the lower courts jurisdiction.
(Sec. 1, Rule 65 Rules of Court) or (b) he may

Q.
What is the effect of an Order of Default?
(1999 Bar Exams)
A.
The effect of an Order of Default is that the
court may proceed to render judgment granting the

file a petition for certiorari if he has been


illegally declared in default e.g. before the
expiration of the time to answer.
2) After judgment but before its finality, he may
file a motion for new trial on the grounds of
fraud, accident, mistake, excusable negligence
or a motion for reconsideration on the ground
of excessive damages, insufficient evidence or
the decision or final order being contrary to
law (Sec. 2 Rule 37 1997 Rule of Civil
Procedure). If the motion is denied, appeal is
available under Rule 40 or 41 whichever is
applicable.
3) After finality of judgment, there are three
ways to assail the judgment, which are: (a) a
petition for relief from judgment under Rule
38 on the grounds of fraud, accident,
mistake, excusable negligence; (b) annulment
of judgment under Rule 47 for extrinsic fraud
or lack of jurisdiction; or (c) certiorari under
Rule 65 if the judgment is void on its face or
by the judicial record.
Q.
Mr. X filed a compliant against Mr. Y in the
RTC. Before an answer is served he amended his
complaint without leave of court. Can he validly do
that?
A.
Yes, a party may amend his pleading once as
a matter of right at anytime before a responsive
pleading is served or, in the case of a reply, at any
time within ten (10) days after it is served. (Sec. 2
Rule 10 1997 Rules). The amendment is a matter of
right since no answer was filed and served yet hence
Mr. X may do the amendment without leave of court.
Q.
A.

How may pleadings be amended?

Q.
In the problem above, what if Beverly filed an
answer and no reply was filed yet, may Beverly
amend her answer?
A.
Yes, Beverly has the right to amend her
answer before a reply. No responsive pleading has
been filed to the answer.
Q.

When is amendment a matter of privilege?

A.
Substantial amendment is a matter of
privilege after the case is set for hearing and hence,
needs leave of court. This is true even if the
amendment does not substantially alter the cause of
action or defense. (Sec. 3 Rule 10 1997 Rules)
Q.
When may leave of court to amend the
complaint be refused?
A.
Leave of court to amend the pleading may be
refused if:
1) the motion is made to delay the action,
2) the cause of action or defense is substantially
altered.
Q.
What
Distinguish.

are

the

kinds

of

amendment?

A.
The kinds of amendments are (1) formal
amendments and (2) substantial amendments.
Formal amendments are those which affect
the form of the pleading such as clerical or
typographical errors, not the substantial rights of the
parties. Whereas substantial amendments are those
that strike at the very essence of the partys claim or
defense and are consequently prejudicial to the other
party.

Pleading be amended either by:


1) adding or striking out an allegation or the
name of any party;
2) correcting a mistake in the name of a party or
a mistake or inadequate allegation or
description in any other respect.

Q.
The plaintiff filed an amended complaint in a
civil case. Will the amendment be barred if after the
filing of the complaint and before the filing of the
amendment, the period of prescription concerning the
cause of action as to which the amendment was, had
expired? Explain.

Q.
Angel filed a compliant against Beverly, who
filed a Motion to Dismiss. May Angel amend her
complaint as a matter of right?

A.
Yes, the rule permits a party to amend his
compliant to incorporate a cause of action already in
existence at the filing of the original pleading. In the
case at bar, after the plaintiff filed his complaint, the
cause of action subject matter of the amended
complaint was already barred by prescription. A
cause of action already barred by prescription can no
longer be ventilated in a court of law.

A.
Yes, because no answer or a responsive
pleading was filed. A motion to dismiss is not a
responsive pleading.

Q.
Aubrey filed a case against Malou. At the trial,
Malou presented evidence changing his defense
without prior amendment of his pleadings. Discuss the
validity of the same.
A.
Malou can do it even without amending his
answer. It may be pointed out that under Sec.5 Rule
10 of 1997 Rules of Civil Procedure, such
amendment of the pleadings as may be necessary to
cause them to conform to evidence and to raise these
issues may be made upon motion of any party at any
time, even if after judgment; but failure to amend
does not affect the result of the trial of these issues.
Q.
Give the limitations on the right to amend
pleadings.
A.
The limitations in amending pleadings are the
following:
1) it cannot change substantially the cause of
action or defense or theory
2) it cannot alter a final judgment on a
substantial matter
3) it cannot confer jurisdiction
4) it cannot cure a premature or non-existing
cause of action
5) it cannot be used to delay proceedings.
Q.
What
pleadings?

are

amended

and

supplemental

A.
An amended pleading is one which
incorporates facts, circumstances or occurrences
that constitute the cause or causes of action or
defenses already in existence at the filing of the
original pleading and which were not included either
because the same were merely overlooked or then not
known.
A supplemental pleading refers to one that
incorporates new facts, occurrences, circumstances
that constitute a new cause of action or defense
which only happen after the filing of the original
pleading.
Q.
Ana filed a complaint for sum of money against
Bea in the amount of P500,000 stating that of the P1M
obligation of the defendant, Bea had already paid
P500,000. Later on Ana filed an amended complaint
stating that Bea has not paid her obligations. State the
effects of the filing of the amended complaint.

A.
Sec. 8 Rule 10 of the 1997 Rules of Civil
Procedure provides that An amended pleading
supersedes the pleading that it amends. However,
admissions in superseded pleadings may be received
in evidence against the pleader; and claim or
defenses alleged therein not incorporated in the
amended pleading shall be deemed waived. The
amended pleading is an admission by Ana that Bea
had paid P500,000 which Bea can use as evidence
against Ana.
Q.
Distinguish
amended
supplemental pleading.

pleading

from

A.
A supplemental pleading does not extinguish
the existence of the original pleading, while an
amended pleading takes the place of the original
pleading. A supplemental pleading exists side by side
with the original, it does not replace that which it
supplements; it does not supersede the original
pleading and the issues joined under the original
pleading remain as issues to be tried in the action. A
supplemental pleading supplies the deficiencies in
aid of an original pleading, not to entirely substitute
the latter. (Sps Caoili vs. CA 14 1999)
Q.

Within what period should an answer be filed?

A.
The defendant shall file his answer to the
complaint within fifteen (15) days after service of
summons, unless a different period is fixed by the
court. (Sec. 1 Rule 11 of 1997 Rules)
Where the defendant is a foreign private
juridical entity and service of summons is made on
the government official designated by law to receive
the same, the answer is to be filed within thirty (30)
days after receipt of summons by such entity. (Sec. 2
Rule 11 Rules)
Q.
Within what period may an answer to an
amended complaint be filed?
A.
Where the plaintiff files an amended
complaint as a matter of right, the defendant shall
answer the same within fifteen (15) days after being
served with a copy thereof.
Where its filing is not a matter of right, the
defendant shall answer the amended complaint
within ten (10) days from notice of the order
admitting the same. An answer earlier filed may serve
as the answer to the amended complaint if no new
answer is filed. (Sec. 3 Rule 11 1997 Rules)

Q.
Ara filed a sum of money case against Tracy.
Ara amended her complaint with leave of court which
was granted. Tracy failed to file an answer to the
amended complaint. May she be declared in default?
A.
No, although the defendant is given 10 days
to answer, Sec. 3 Rule 11 of 1997 Rules of Civil
Procedure provides that An answer earlier filed may
serve as the answer to the amended complaint if no
new answer is filed. Tracy had already filed an
answer hence cannot be declared in default.
Q.

Is extension of time to plead allowable?

A.
Yes upon motion and such terms as may be
just, the court may extend the time to plead, (Sec. 11
Rule11 1997 Rules), provided that the motion for
extension of time to plead is filed before the lapse of
the period; otherwise, there is nothing more to
extend.
Q.
What is the period to answer a counter claim
or cross-claim? What is the purpose?
A.
A counter claim or cross claim should be
answered within 10 days from service. (Sec. 4 Rule
11 of 1997 Rules). Counter claim or cross-claim is
never considered as defense but as a counter-action
or cross-action.
There can be default except if the counter
claim is compulsory.
Q.

What is the period to reply? Is it mandatory?

A.
A reply may be filed within 10 days from
service of the pleading responded to. (Sec. 6 Rule 11
1997 Rules) It is optional because if there is no reply
the party is deemed to have controverted all the new
matters called in the answer except when the answer
is based on an actionable document.
Q.
Defendant failed to file an answer within the
prescriptive period, what must he do if he was not yet
declared in default?
A.
A motion for leave to admit answer should be
filed and the answer should be attached to it.
Q.
Defendant failed to answer a supplemental
complaint, may he be declared in default? What is the
period to answer supplemental complaint?
A.
Sec. 7 of Rule 11 of 1997 Rules provides that
A supplemental complaint may be answered within

10 days from notice of the order admitting the same,


unless a different period is fixed by the court. The
answer to the complaint shall serve as the answer to
the supplemental complaint if no new or
supplemental answer is filed.
Q.
How may a counter claim or cross-claim which
a party failed to allege be pleaded?
A.
When a pleader fails to set up a counter claim
or a cross-claim through oversight, inadvertence or
excusable neglect, or when justice requires, he may,
by leave of court set up the counter claim or crossclaim by amendment before judgment.
Q.
Maui sued Rica to recover P300, 000.00
representing unpaid obligation of defendant for office
equipment purchased from plaintiff. Considering that
Rica cannot determine exactly how come she still had
such obligation, what procedural step must she take to
protect her interest?
A.
Rica must file a motion for a bill of particulars
within ten (10) days after service of summons and a
copy of the complaint to her, for a more definite
statement regarding the particulars of this P300,
000.00 obligation.
Q.

What is the concept of a bill of particulars?

A.
A bill of particulars is a detailed explanation
respecting any matter which is not averred with
sufficient definiteness or particularity in the
complaint so as to enable a party to properly prepare
his responsive pleading or to prepare for trial.
The bill of particulars is filed by the plaintiff
pursuant to an order of the court issued upon
granting a motion for a bill of particulars filed by the
defendant before the latter files his answer. In this
motion the defendant prays for a more definite
statement of matters which are not averred with
sufficient definiteness in the complaint.
Q.
What is the effect of the filing of a bill of
particulars?
A.
A seasonable motion for a bill of particulars
interrupts the period within which to answer. After
service of the bill of particulars or of a more definite
pleading, or after notice of denial of his motion, the
moving party shall have the same time to serve his
responsive pleading, if any is permitted by the rules,
as that to which he was entitled at the time of

serving his motion, but no less than five (5) days in


any event. (Sec. 5 Rule 12 1997 Rules)
Q.
What should a party do if a motion for bill of
particulars is granted?
A.
Sec. 3 Rule 12 of 1997 Rules of Civil
Procedure provides that if the motion for bill of
particulars is granted, in whole or in part, the
compliance therewith must be effected with ten (10)
days from notice of the order, unless a different
period is fixed by the court.
Q.
What is the effect of non-compliance with the
order to file bill of particulars?
A.
If the order to file a bill of particulars is not
obeyed or in case of insufficient compliance
therewith, the court may order the striking out of the
pleading or the portions thereof to which the order
was directed or make such other order as it deems
just. (Sec. 4 Rule 12 1997 Rules)
Q.

How should the bill of particulars be filed?

A.
It may be filed either in a separate or in an
amended pleading, serving a copy thereof on the
adverse party. (Sec. 3 Rule 12 of 1997 Rules)
PRELIMINARY CONFERENCE AND APPEARANCES
OF THE PARTIES
Q.
What action shall the court take upon the filing
of a civil or criminal action?
A.
Upon the filing of a civil or criminal action,
the court shall issue an order declaring whether or
not the case shall be governed by this Rule. A
patently erroneous determination to avoid the
application of the Rule on Summary procedure is a
ground for disciplinary action.
Q.
What pleadings are allowed under the rules
on summary procedure?
A.
The only pleadings allowed to be filed are the
complaints, compulsory counterclaims and crossclaims pleaded on the answer, and the answers
thereto. All pleadings shall be verified.
Q.
Suppose the court has determined that the
case falls under the rule on summary procedure, can it
dismiss the case outright on any ground apparent
there from for the dismissal of a civil action?

A.
Yes. Sec.4 of the Revised Rule on Summary
Procedure provides that after the court determines
that the case falls under summary procedure, it may
from an examination of the allegations therein and
such evidence as may be attached thereto, dismiss
the case outright on any of the grounds apparent
there from for the dismissal of a civil action.
If no ground for dismissal is found it shall
forthwith issue summons which shall state that the
summary procedure under this Rule applies.
Q.
A complaint for forcible entry was filed by
Miss SG against Mr. X and Mr. Y before the MTCC of
B.C. Mr X and Mr Y filed with the MTCC of Baguio
City an urgent motion for extension of time to file an
answer which was denied on the ground that it was
a prohibited pleading under the rule on summary
procedure. More than 10 days from receipt of
summons petitioner submitted an urgent motion
praying for the admission of their answer, which was
attached thereto. Rule on the motion.
A.
I will deny the motion. The Rule on Summary
Procedure, in particular, was promulgated for the
purpose of achieving an expeditious and inexpensive
determination of cases. For this reason, the rule
frowns upon delays and prohibits altogether the filing
of motions for extension of time. Consistent with this
reasoning is Sec 6 of the Rule which allows the trial
court to render judgment, even motu proprio, upon
the failure of a defendant to file an answer within the
reglementary period.
The filing of an answer within the reglementary
period is mandatory and non extendible. The word
shall underscores the mandatory character of the
Rule. Giving the provisions, a directory application
would subvert the nature of the rule on Summary
Procedure and defeat its objective of expediting the
adjudication of suits. To admit a late answer is to put
premium on dilatory manners.
Q.
What are the reglementary periods within
which answers must be filed?
A.
Within ten (10) days from service of
summons, the defendant shall file his answer to the
complaint and serve a copy thereof on the plaintiff.
The answers to counterclaims or cross-claims shall
be filed and served within 10 days from service of the
answers in which they are pleaded. (Sec 5)

Q.
May defenses be waived under the Rule on
Summary Procedure?
A.
Yes. Affirmative and negative defenses are
deemed waived if not pleaded in the answer; except
lack of jurisdiction over the subject matter.
***Cross-claims and compulsory counterclaims
are deemed barred if not pleaded.
Q.
What are the effects of non- appearance of
parties during preliminary conference.
A.
Preliminary conference shall be held not later
than 30 days after the filing of the last answer.
***If plaintiff fails to appear, the case can be
dismissed.
***If defendant appears while plaintiff did not, the
defendant shall be entitled to judgment on his
counterclaim. All cross-claims shall be dismissed.
***If sole defendant fails to appear, the plaintiff
shall be entitled to judgment as may be warranted by
the allegations in the complaint and evidence. In
Lesaca vs. CA 21 Oct 1992, it was held that failure of
defendant to appear at the preliminary conference is
not a ground for judgment by default.
***The rule does not apply if there are two or more
defendants who were sued under a common cause
and have a common defense.
Q.
What is the duty of the court, in criminal
cases covered by Rule on Summary Procedure if the
case is commenced by complaint? Or by information?
A.
On the basis of the complaint and the
affidavits and other evidence accompanying the
same, the court may dismiss the case outright for
being patently without basis or merit and order the
release of the accused if in custody.
When the case is commenced by information, or
is not dismissed pursuant to the next preceding
paragraph, the court shall issue an order which
together with copies of the affidavits and other
evidence submitted by the prosecution, shall require
the accused to submit his counter-affidavit and the
affidavits of his witnesses as well as any evidence in
his behalf serving copies thereof on the complainant
or prosecutor not later than 10 days from receipt of
such order. The prosecution may file reply affidavits
within ten (10) days after receipt of the counter
affidavits of the defense.

Q.
In pre-trial of criminal cases, there are
admissions made by the accused. Are they admissible
against him?
A.
It depends. In pre-trial conference, no
admission of the accused can be used against him
unless put to writing and signed by the accused and
his counsel. A refusal or failure to stipulate shall not
prejudice the accused.
Q.
When may the court order the arrest of the
accused?
A.
The court shall not order the arrest of the
accused except for failure to appear whenever
required. Release of the person arrested shall either
be on bail or recognizance by a responsible citizen
acceptable to the court.
Q.
In an ejectment case which was covered by the
Rule on Summary Procedure, defendant lost in the
MTC. He appealed to the RTC which affirmed the
decision. Defendant filed a motionfor reconsideration
which was objected by the plaintiff on the ground that
motion for reconsideration is a prohibited motion under
the Rules on Summary Procedure. Rule on the motion.
A.
Motion for reconsideration is allowed. The
Rule on Summary Procedure applies only in cases
filed before the MTC pursuant to Sec 26 of BP 129.
Summary procedures have no application to cases
before the RTC. Hence, when the respondents
appealed the decision of the MTC to the RTC, the
applicable rules are those of the latter court. Hence a
motion for reconsideration of the decision of the RTC
is available. (Jakihaka vs. Aquino 12 Jan 1990)
KATARUNGANG PAMBARANGAY
Q.
What is the object of Katarungang
Pambarangay Law? (1999 Bar Examination)
A.
The object of the Katarungang Pambarangay
Law is to effect an amicable settlement of disputes
among family and barangay members at the
barangay level
without
judicial recourse
and consequently help relieve the courts of docket
congestion.
Compliance therewith is a condition
precedent to the filing of a complaint or information
in court or
before the Prosecutors office and its
absence is a ground for
dismissal
of
the
complaint for pre maturity or absence of cause of
action.

CASES COVERED
Q.
What are the cases over which the Barangay
Lupon may take cognizance of? Exceptions?
A.
The Barangay Lupon shall have authority to
bring together the parties actually residing in the
same municipality or city for amicable settlement of
all disputes except:
1) When one party is the government or any
subdivision or instrumentality thereof;
2) Where one party is a public officer or
employee, and the dispute relates to the
performance of his official functions.
3) Offenses
punishable
by
imprisonment
exceeding one (1) year or a fine exceeding Five
Thousand Pesos(P5,000).
4) Offenses where there is no private offended
party.
5) Where the dispute involves real properties
located in different cities or municipalities
unless the parties thereto agree to submit
their differences to amicable settlement by an
appropriate lupon.
6) Disputes involving parties who actually reside
in
barangays
of
different
cities
or
municipalities, except where such barangay
units adjoin each other and the parties
thereto agree to submit their differences to
amicable settlement by an appropriate lupon .
7) Such classes of disputes which the President
may determine in the interest of justice or
upon the recommendation of the Sec. Of
Justice.
8) Any complaint by or against corporations,
partnerships or juridical entities. The reason
is that only individuals shall be parties to
barangay conciliation proceedings.
9) Labor disputes or controversies arising from
employer-employee relationship.
10) Actions to annul judgments upon a
compromise which can be filed directly in
court. (Sec.408 RA 7160)
SUBJECT MATTER FOR AMICABLE SETTLEMENT
Q.
A collection for sum of money case (P400,000)
was filed by Mr. X against Mr. Y, both residents of
Baguio City, at the RTC of Baguio City. Mr. Y filed a
motion to dismiss alleging that since they are
residents of the same city, the case should be first
resolved by the Barangay Lupon, hence the case is

prematurely filed and should be dismiss for lack of


cause of action. Mr. X objected to the motion
contending that the case is beyond the Barangay
Lupons jurisdiction. Only those cases cognizable by
the First level courtst should go to the Barangay Lupon
for conciliation as to do otherwise will divest the RTC
of its jurisdiction. Is Mr. Xs contention meritorious?
A.
No. Mr. Xs contention is not meritorious
because the lupon of each barangay shall have
authority to bring together the parties actually
residing in the same municipality or city for amicable
settlement of ALL disputes. Even if the case is
within the RTCs jurisdiction, compliance still to the
provision of Sec 408 of RA 7160, is a condition
precedent for filing an action as long as the parties
are residents of the same municipality or city.
VENUE
Q.
What are the rules of venue under the
Katarungang Pambarangay Law?
A.

1)

2)

3)

4)

They are as follows:


Disputes between persons actually residing in
the same barangay shall be brought for
amicable settlement before the Lupon of the
said barangay.
Those involving actual residents of different
barangays where the respondent or any of the
respondents actually resides, at the election
of the complainant.
All disputes involving real property or any
interest shall be brought in the barangay
where the real property or the larger portion
thereof is situated.
Those arising at the workplace where the
contending parties are employed or at the
institution where such parties are enrolled for
study shall be brought in the barangay where
such workplace or institution is located. (See
409 Local Government Code 1991)

WHEN PARTIES MAY DIRECTLY GO TO COURT


Q.
In a case, two parties are residents of the
same municipality but others are residents of different
municipalities. Is there a need for prior barangay
conciliation? Why?
A.
No more. In Candido vs. Macapagal, 221 S
328, it was said that the fact that petitioner Candido

and respondent Contreras are residents of the same


municipality will not justify compulsory conciliation
under PD 7160, it appears that other respondents
are residents of different municipalities. Petitioners
can file the case directly in court without resorting to
barangay conciliation.
EXECUTION
Q.

When may objections to venue be raised?

A.
Objections to venue shall be raised in the
mediation proceedings before the punong barangay;
otherwise, the same shall be deemed waived. Any
legal question which may confront the punong
barangay in resolving objections to venue herein
referred to may be submitted to the Secretary of
Justice or his duly designated representative whose
ruling thereon shall be binding.
Q.
Alice filed a complaint for damages against
her next-door neighbor Rosa for P100,000 with prayer
for preliminary attachment. She alleged that Rosa
intrigued against her honor by spreading unsavory
rumors about her among their co-workers at the
Phoenix knitwear factory located at Valenzuela.
After pre-trial the court muto proprio referred the
case for amicable settlement between the parties to
the Lupon Tagapamayapa of Brgy. 2 Zone 3 in
Valenzuela where the factory is located.
Rosa
questioned the order contending that the court had no
authority to do so as both parties had already gone
through pre-trial where amicable settlement was
foreclosed and the parties were already going to trial.
(1)
Comment on Rosas contention. Explain.
(2)
Rosa also opposed the referral to the Lupon
Tagapamayapa of Brgy. 2 Zone 3 claiming that the
venue was wrong as the proper Lupon was that of
Brgy. 1 Zone 5 where she and Alice reside. Is Rosas
contention valid? Explain.
(3)
Suppose that the Lupon of Brgy 2 Zone 3 is
successful in forgoing an amicable settlement between
Alice and Rosa, is the compromise immediately
executory? Explain.
(4)
How, when, and by whom shall the
compromise agreement be enforced? Explain. (1995
Bar Exams)
A.
Rosa is not correct. The Local Government
Code of 1991 provides that in non-criminal cases not
falling within the authority of the Lupon, the court
may at any time before the trial refer the case to the

Lupon concerned for amicable settlement. (Sec 408


RA 7160)
No, because the law also provides that the
venue of disputes arising at the workplace of the
contending parties shall be brought in the barangay
where such workplace is located. (Sec 409[d], RA
7160).
No, because any compromise settlement shall
be submitted to the court which referred the case for
approval. Sec. 416, RA 7160).
Upon approval thereof, it shall have the force
and effect of a judgment of the court and shall be
enforced in accordance with Sec 6 Rule 39, execution
by motion or by independent action.
REPUDIATION
Q.
AB filed a complaint for unlawful detainer
against AS before the MTC, Baguio City without
referring it first to the barangay Lupon for conciliation.
A motion to dismiss was filed on the ground of failure
to comply with the requirements of conciliation alleging
that bothparties are residents of Baguio City, although
the complaint stated that defendant has a postal office
address in Baguio City. If you were the judge, rule on
the objection.
A.
I will deny the motion. As ruled by the SC in
the case of Boleyley vs. Villanueva
14 Sept. 1999,
there is no need to comply with the conciliation
requirement under the Katarungan Pambarangay
Law in the absence of showing in the complaint that
the parties reside in the same city or municipality.
Plaintiffs complaint should have alleged defendants
actual residence, not his postal address. The
allegation of defendants actual residence would have
been ideal to determine the venue. In procedural law,
however, specifically for the purposes of venue, the
residence of a person is his personal, actual or
physical habitation or his actual residence or place of
abode, which may not necessarily be his legal
residence or domicile. The complaint clearly implies
that the parties do not reside in the same city or
municipality because the postal office address is not
included in the term residence.
Q.
What is the effect of the conciliation
proceeding on the prescriptive period for offenses and
cause of action?
A.
While the dispute is under mediation,
conciliation or arbitration, the prescriptive periods
for offenses and causes of action under existing laws

shall be interrupted upon filing of the complaint with


the punong barangay. The prescriptive periods shall
resume upon receipt by the complainant of the
certification of repudiation or of the certification to
file action issued by the lupon or pangkat secretary.
But such interruption shall not exceed 60 days from
the filing of the complaint with the punong barangay.
Q.
Petitioner Diu filed a complaint against private
respondent Pagba before the Barangay Chairman of
Naval, Biliran. The Brgy. Chairman set the case for
hearing but private respondent failed to appear. When
the case was set again for hearing, the parties
appeared but they failed to reach an amicable
settlement. Accordingly, the barangay chairman
issued a certification to File Action. Petitioners then
filed their complaint before the MTC of Naval. Private
respondent moved to dismiss the complain on the
ground that no Pangkat was convened to settle the
dispute. Rule on the motion.
A.
The motion should be denied for lack of merit.
The SC held in the case of Diu vs. CA 19 Dec. 1995,
while no pangkat was constituted it is not denied
that the parties met at the office of the barangay
chairman for possible settlement. The efforts of the
barangay chairman, however, proved futile as no
agreement was reached. Although no pangkat was
formed, we believe that there was substantial
compliance with the law. It is noteworthy that under
Sec 412 of the Local Government Code, the
confrontation before the lupon chairman or the

pangkat
is
sufficient
compliance
precondition for filing the case in court.

with

the

Q.
A compromise agreement between A and B
was entered into in the municipal court in an
ejectment suit. An action to annul the judgment was
filed in the RTC which action was being sought to be
dismissed for failure of the plaintiff to resort to
barangay conciliation. Is the contention correct? Why?
A.
No. It cannot be dismissed on the ground of
pre maturity or failure to resort to barangay
conciliation because a compromise is immediately
executory and beyond the Authority of Barangay. An
administrative body like the lupon cannot overturn
the judgment of a court. (Sanchez vs. Tupas, 158
SCRA 459).
Q.
For failure of the tenant, X to pay rentals, A the
court- appointed administrator of the estate of Henry
Datu, decides to file an action against the former for
the recovery of possession of the leased premises
located in Davao City and for the payment of accrued
rentals in the total amount of P25,000.
Is prior referral to the Lupon necessary? (1991 Bar
Exams)
A: No, because the law applies only to disputes
between natural persons and does not apply to
juridical person such as the estate of a deceased.