Rule 46

ORIGINAL CASES

Q: What is the difference between Rule 46 and Rule 44?

A: Rule 44 deals with appealed cases. Rule 46 deals with original cases. Remember that the CA is both an
original and appellate court.

Q: What are these original cases which can be filed in the CA?
A: Under Section 9 of BP 129, Certiorari, prohibition, mandamus, quo warranto, annulment of judgment of
the RTC.

The Annulment of Judgment of the RTC, which belongs to the exclusive original jurisdiction of the CA, is
governed by Rule 47.

Now, all the rest of the sections here are almost the same: how many copies, docket fees, certification of
non-forum shopping, etc…

Section 1. Title of cases. In all cases originally filed in the

Court of Appeals, the party instituting the action shall be called
the petitioner and the opposing party the respondent. (1a)

Rule 44 on appeal to the CA, the caption of the case is the same as the caption in the RTC (e.g. in the RTC,
“RED HOT vs. LIMP BIZKIT”). You just add the word ‘appellant’ and ‘appellee.’ BUT in Rule 44 in original
cases, the parties are now called ‘petitioner’ and ‘respondent.’

Sec. 2. To what actions applicable. This Rule shall apply to

original actions for certiorari, prohibition, mandamus and quo
warranto.
Except as otherwise provided, the actions for annulment of
judgment shall be governed by Rule 47, for certiorari, prohibition
and mandamus by Rule 65, and for quo warranto by Rule 66. (n)

Therefore, the provisions of Rules 65, 66 and 47 which apply to this original action should be read with Rule
46.

Just read Section 3. Take note of the second paragraph which was inserted in 1998 by SC Circular 39-98).

Sec. 3. Contents and filing of petition; effect of non-

compliance with requirements. The petition shall contain the full
names and actual addresses of all the petitioners and respondents,
a concise statement of the matters involved, the factual
background of the case, and the grounds relied upon for the relief
prayed for.
In actions filed under Rule 65, the petition shall further
indicate the material dates showing when notice of the judgment or
final order or resolution subject thereof was received, when a
motion for new trial or reconsideration, if any, was filed and
when notice of the denial thereof was received. (Cir. No. 39-98)
It shall be filed in seven (7) clearly legible copies together
with proof of service thereof on the respondent with the original
copy intended for the court indicated as such by the petitioner,
and shall be accompanied by a clearly legible duplicate original
or certified true copy of the judgment, order, resolution, or
ruling subject thereof, such material portions of the record as
 are referred to therein, and other documents relevant or pertinent
thereto. The certification shall be accomplished by the proper
clerk of court or by his duly authorized representative, or by the
proper officer of the court, tribunal, agency or office involved
or by his duly authorized representative. The other requisite
number of copies of the petition shall be accompanied by clearly
legible plain copies of all documents attached to the original.
The petitioner shall also submit together with the petition a
sworn certification that he has not theretofore commenced any
other action involving the same issues in the Supreme Court, the
Court of Appeals or different divisions thereof, or any other
tribunal or agency; if there is such other action or proceeding,
he must state the status of the same; and if he should thereafter
learn that a similar action or proceeding has been filed or is
pending before the Supreme Court, the Court of Appeals, or
different divisions thereof, or any other tribunal or agency, he
undertakes to promptly inform the aforesaid courts and other
tribunal or agency thereof within five (5) days therefrom.
The petitioner shall pay the corresponding docket and other
lawful fees to the clerk of court and deposit the amount of
P500.00 for costs at the time of the filing of the petition.
The failure of the petitioner to comply with any of the
foregoing requirements shall be sufficient ground for the
dismissal of the petition. (n)

Sec. 4. Jurisdiction over person of respondent, how acquired.

The court shall acquire jurisdiction over the person of the
respondent by the service on him of its order or resolution
indicating its initial action on the petition or by his voluntary
submission to such jurisdiction. (n)

When you file an original action before the CA like certiorari, normally under Section 3 you already furnish
the adverse party with a copy of your petition. Then the CA will now issue a resolution, like for example,
“Defendant/Respondent, you are given so many days to comment.”

That is how the CA acquires jurisdiction over your person – by serving you a copy of the order indicating its
initial action. So there is no more summons because you were already furnished a copy earlier.

Sec. 5. Action by the court. The court may dismiss the petition
outright with specific reasons for such dismissal or require the
respondent to file a comment on the same within ten (10) days from
notice. Only pleadings required by the court shall be allowed. All
other pleadings and papers may be filed only with leave of court.
(n)

Sec. 6. Determination of factual issues. Whenever necessary to

resolve factual issues, the court itself may conduct hearings
thereon or delegate the reception of the evidence on such issues
to any of its members or to an appropriate court, agency or
office. (n)

Sec. 7. Effect of failure to file comment. When no comment is

filed by any of the respondents, the case may be decided on the
basis of the record, without prejudice to any disciplinary action
which the court may take against the disobedient party. (n)
 -oOo-

1997 Rules on Civil Procedure

2001 Edition <draft copy. pls. check for Rule 46
errors> Original Cases

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Lakas Atenista
Ateneo de Davao University College of Law