Posted by: Elmer Brabante | May 21, 2011

2011 Remedial Law Reviewer (Rules 3-13)



Real parties in interest; indispensable parties; representatives as parties; necessary parties; indigent parties; alternative defendants


  1. 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 (Sec. 2, Rule 3). The interest must be real, which is a present substantial interest as distinguished from a mere expectancy or a future, contingent subordinate or consequential interest (Fortich vs. Corona, 289 SCRA 624). It is an interest that is material and direct, as distinguished from a mere incidental interest in question (Samaniego vs. Aguila, 334 SCRA 438). While ordinarily one who is not a privy to a contract may not bring an action to enforce it, there are recognized exceptions this rule:

  1. Contracts containing stipulations pour atrui or stipulations expressly conferring benefits to a non-party may sue under the contract provided such benefits have been accepted by the beneficiary prior to its revocation by the contracting parties (Art. 1311, Civil Code).

  2. Those who are not principally or subsidiarily obligated in the contract, in which they had no intervention, may show their detriment that could result from it. For instance, Art. 1313, CC, provides that “creditors are protected in cases of contracts intended to defrauded them.” Further, Art. 1318, CC, provides that contracts entered into in fraud of creditors may be rescinded when the creditors cannot in any manner collect the claims due them. Thus, a creditor who is not a party to a contract can sue to rescind the contract to redress the fraud committed upon him.

  1. Indispensable Party is a real party-in-interest without whom no final determination can be had of an action (Sec. 7, Rule 3). Without the presence of his party the judgment of a court cannot attain real finality (De Castro vs. CA, 384 SCRA 607). The presence of indispensable parties is a condition for the exercise of juridical power and when an indispensable party is not before the court, the action should be dismissed. The absence of indispensable party renders all subsequent actions of the court null and void for want of authority to act, not only to the absent parties but even as to those present. Two essential tests of an indispensable party: (a) Can a relief be afforded to the plaintiff without the presence of the other party; and (b) Can the case be decided on its merits without prejudicing the rights of the other party?

  1. A person is not an IP if his interest in the controversy or subject matter is separable from the interest of the other parties, so that it will not necessarily be directly or injuriously affected by a decree which does complete justice between them. Also, a person is not an IP if his presence would merely permit complete relief between him and those already parties to the action, or if he has no interest in the subject matter of the action.

  2. Although normally a joinder of action is permissive (Sec. 6, Rule 3), the joinder of a party becomes compulsory when the one involved is an indispensable party. Clearly, the rule directs a compulsory joinder of IP (Sec. 7, Rule 3).

  1. Necessary Party is one who is not indispensable but ought to be joined as a party if complete relief is to be accorded as to those already parties, of for a complete determination or settlement of the claim subject of the action. But a necessary party ought to be joined as a party if complete relief is to be accorded as to those already parties (Sec. 8, Rule 3). The non-inclusion of a necessary party does not prevent the court from proceeding in the action, and the judgment rendered therein shall be without prejudice to the rights of such necessary party (Sec. 9, Rule 3).

  2. Indigent party is one who is allowed by the court to litigate his claim, action or defense upon ex parte application and hearing, when the court is satisfied that such party has no money or property sufficient and available for food, shelter, basic necessities for himself and his family (Sec. 21, Rule 3). If one is authorized to litigate as an indigent, such authority shall include an exemption from the payment of docket fee, and of transcripts of stenographic notes, which the court may order to e furnished by him. However, the amount of the docket and other fees, which the indigent was exempt from paying, shall be lien on the judgment rendered in the case favorable to the indigent. A lien on the judgment shall or arise if the court provides otherwise (Sec. 21, Rule 3).

  3. Representatives as parties pertains to the parties allowed by the court as substitute parties to an action whereby the original parties become incapacitated of incompetent (Sec. 18, Rule 3). The substitution of a party depends on the nature of the action. If the action is personal, and a party dies pendent lite, such action does not survive, and such party cannot be substituted. If the action is real, death of the defendant survives the action, and the heirs will substitute the dead. A favorable judgment obtained by the plaintiff therein may be enforced against the estate of the deceased defendant (Sec. 1, Rule 87).

  1. In case a party becomes incapacitated or incompetent during the pendency of the action, the court, upon motion, may allow the action to be continued by or against the incapacitated or incompetent party with the assistance of his legal guardian or guardian ad litem (Sec. 18, Rule 20).

  2. In case of transfer, the action may be continued by or against the original party, unless the court upon motion directs the person to whom the interest is transferred to be substituted in the action or joined with the original party Sec. 19, Rule 3).

  1. Alternative defendants are those who may be joined as such in the alternative by the plaintiff who is uncertain from whom among them he is entitled to a relief, regardless of whether or not a right to a relief against one is inconsistent with that against the other. Where the plaintiff cannot definitely identify who among two or more persons should be impleaded as a defendant, he may join all of them as defendants in the alternative. Under Sec. 13, Rule 3, “where the plaintiff is uncertain against who of several persons he is entitled to relief, he may join any or all of them as defendants in the alternative, although a right to relief against one may be inconsistent with a right of relief against the other.” Just as the rule allows a suit against defendants in the alternative, the rule also allows alternative causes of action (Sec. 2, Rule 8) and alternative defenses (Sec. 5[b], Rule 6).


Compulsory and permissive joinder of parties


  1. Joinder of parties is compulsory if there are parties without whom no final determination can be had of an action (Sec. 7, Rule 3).

  2. Joinder of parties is permissive when there is a right or relief in favor of or against the parties joined in respect to or arising out of the same transaction or series of transactions, and there is a question of law or fact common to the parties joined in the action (Sec. 6, Rule 3).


Misjoinder and non-joinder of parties


  1. A party is misjoined when he is made a party to the action although he should not be impleaded. A party is not joined when he is supposed to be joined but is not impleaded in the action.

  2. Under the rules, neither misjoinder nor non-joinder of parties is a ground for the 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 terms as are just (Sec. 11, Rule 3). Misjoinder of parties does not involve questions of jurisdiction and not a ground for dismissal (Republic vs. Herbieto, 459 SCRA 183).

  3. Even if neither misjoinder nor non-joinder of parties is a ground for dismissal of the action, the failure to obey the order of the court to drop or add a party is a ground for the dismissal of the complaint under Sec. 3, Rule 17.

  4. The rule does not comprehend whimsical and irrational dropping or adding of parties in a complaint. What it really contemplates is erroneous or mistaken non-joinder and misjoinder of parties. No one is free to join anybody in a complaint in court only to drop him unceremoniously later at the option of the plaintiff. The rule presupposes that the original inclusion had been made in the honest conviction that it was proper and the subsequent dropping is requested because it has turned out that such inclusion was a mistake. And this is the reason why the rule ordains that the dropping is “on such terms as are just” (Lim Tan Hu vs. Ramolete, 66 SCRA 425).


Class suit


  1. A class suit is an action where one or more may sue for the benefit of all if the requisites for said action are complied with.

  2. An action does not become a class suit merely because it is designated as such in the pleadings. Whether the suit is or is not a class suit depends upon the attendant facts. A class suit does not require commonality of interest in the questions involved in the suit. What is required by the Rules is a common or general interest in the subject matter of the litigation. The subject matter of the action means the physical, the things real or personal, the money, lands, chattels, and the like, in relation to the suit which is prosecuted and not the direct or wrong committed by the defendant. It is not also a common question of law that sustains a class suit but a common interest in the subject matter of the controversy. (Mathay vs. Consolidated Ban & Trust Co., 58 SCRA 559). There is no class suit when interests are conflicting.

  3. For a class suit to prosper, the following requisites must concur:

  1. The subject matter of the controversy must be of common or general interest to may persons;

  2. The persons are so numerous that it is impracticable to join all as parties;

  3. The parties actually before the court are sufficiently numerous and representative as to fully protect the interests of all concerned; and

  4. The representatives sue or defend for the benefit of all (Sec.12, Rule 3).


Suits against entities without juridical personality


  1. A corporation being an entity separate and distinct from its members has no interest in the individual property of its members unless transferred to the corporation. Absent any showing of interests, a corporation has no personality to bring an action for the purpose of recovering the property, which belongs to the members in their personal capacities.

  2. An entity without juridical personality may be sued under a common name by which it is commonly known when it represents to the plaintiff under a common name, and the latter relies on such representation (Lapanday vs. Estita, 449 SCRA 240).


Effect of death of party litigant


  1. The death of the client extinguishes the attorney-client relationship and divests a counsel of his authority to represent the client. Accordingly, a dead client has no personality and cannot be represented by and attorney (Laviña vs. CA, 171 SCRA 691). Neither does he become the counsel of the heirs of the deceased unless his services are engaged by said heirs (Lawas vs. CA, 146 SCRA 173).

  2. Upon the receipt of the notice of death, the court shall order the legal representative or representatives of the deceased to appear and be substituted for the deceased within thirty (30) days from notice (Sec. 16, Rule 3). The substitution of the deceased would not be ordered by the court in cases where the death of the party would extinguish the action because substitution is proper only when the action survives (Aguas vs. Llamas, 5 SCRA 959).

  3. Where the deceased has no heirs, the court shall require the appointment of an executor or administrator. This appointment is not required where the deceased left an heir because the heir under the new rule, may be allowed to be substituted for the deceased. If there is an heir but the heir is a minor, the court may appoint a guardian ad litem for said minor heir (Sec. 13, Rule 3).

  4. The court may appoint an executor or administrator when:

  1. the counsel for the deceased does not name a legal representative; or

  2. there is a representative named but he failed to appear within the specified period (Sec. 16, Rule 3).



  1. VENUE (Rule 4)


  1. Venue is the place or the geographical area where an action is to be filed and tried. In civil cases, it relates only to the place of the suit and not to the jurisdiction of the court (Manila Railroad Company vs. Attorney General, 20 Phil. 523).


Venue versus Jurisdiction


  1. Jurisdiction is the authority to hear and determine a case; venue is the place where the case is to be heard or tried;

  2. Jurisdiction is a matter of substantive law; venue of procedural law;

  3. Jurisdiction establishes a relation between the court and the subject matter; venue, a relation between plaintiff and defendant, or petitioner and respondent;

  4. Jurisdiction is fixed by law and cannot be conferred by the parties; venue may be conferred by the act or agreement of the parties; and

  5. Lack of jurisdiction over the subject matter is a ground for a motu propio dismissal; venue is not a ground for a motu propio dismissal except in cases subject to summary procedure.


Venue of real actions


  1. 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 municipal trial court of the municipality or city wherein the real property involved, or a portion thereof, is situated (Sec. 1, Rule 4).


Venue or personal actions


  1. All other actions may be commenced and tried where the plaintiff or any of the principal plaintiffs resides, or where the defendant or any of the principal defendants resides, all at the option of the plaintiff (Sec. 2, Rule 4).


Venue of actions against non-residents


  1. 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 (Sec. 3, Rule 4), or at the place where the defendant may be found, at the option of the plaintiff (Sec. 2).


When the Rules on Venue do not apply


  1. The Rules do not apply (a) in those cases where a specific rule or law provides otherwise; or (b) where the parties have validly agreed in writing before the filing of the action on the exclusive venue thereof (Sec. 4, Rule 4).


Effects of stipulations on venue


  1. The parties may stipulate on the venue as long as the agreement is (a) in writing, (b) made before the filing of the action, and (3) exclusive as to the venue (Sec. 4[b], Rule 4).

  2. The settled rule on stipulations regarding venue is that while they are considered valid and enforceable, venue stipulations in a contract do not, as a rule, supersede the general rule set forth in Rule 4 in the absence of qualifying or restrictive words. They should be considered merely as an agreement or additional forum, not as limiting venue to the specified place. They are not exclusive by rather permissive. If the intention of the parties were to restrict venue, there must be accompanying language clearly and categorically expressing their purpose and design that actions between them be litigated only at the place named by them.

  3. In interpreting stipulations as to venue, there is a need to inquire as to whether or not the agreement is restrictive or not. If the stipulation is restrictive, the suit may be filed only in the place agreed upon by the parties. It must be reiterated and made clear that under Rule 4, the general rules on venue of actions shall not apply where the parties, before the filing of the action, have validly agreed in writing on an exclusive venue. The mere stipulation on the venue of an action, however, is not enough to preclude parties from bringing a case in other venues. The parties must be able to show that such stipulation is exclusive. In the absence of qualifying or restrictive words, the stipulation should be deemed as merely an agreement on an additional forum, not as limiting venue to the specified place (Spouses Lantin vs. Lantin, GR 160053, August 28, 2006).





  1. Pleadings are written statements of the respective claims and defenses of the parties submitted to the court for appropriate judgment (Sec. 1, Rule 6). Pleadings aim to define the issues and foundation of proof to be submitted during the trial, and to apprise the court of the rival claims of the parties.


Kinds of Pleadings (Rule 6)




  1. Complaint is the pleading alleging the plaintiff’s cause or causes of action, stating therein the names and residences of the plaintiff and defendant (Sec. 3, Rule 6).




  1. An answer is a pleading in which a defending party sets forth his defenses (Sec. 3, Rule 6). It may allege legal provisions relied upon for defense (Sec. 1, Rule 8).


Negative Defenses


  1. Negative defenses are the specific denials of the material fact or facts alleged in the pleading of the claimant essential to his cause or causes of action (Sec. 5[a], Rule 6).

  2. When the answer sets forth negative defenses, the burden of proof rests upon the plaintiff, and when the answer alleges affirmative defenses, the burden of proof devolves upon the defendant.


Negative Pregnant


  1. Negative pregnant is an admission in avoidance which does not qualify as a specific denial.

  2. It is a form of negative expression which carries with it an affirmation or at least an implication of some kind favorable to the adverse party. It is a denial pregnant with an admission of the substantial facts alleged in the pleading. Where a fact is alleged with qualifying or modifying language and the words of the allegation as so qualified or modified are literally denied, the qualifying circumstances alone are denied while the fact itself is admitted (Republic vs. Sandiganbayan, GR 1512154, July 15, 2003).


Affirmative Defenses


  1. Negative defenses are allegations of new matters which, while hypothetically admitting the material allegations in the pleading of the claimant, would nevertheless prevent or bar recovery by him. Affirmative defenses include:

  1. Fraud

  2. Statute of limitations

  3. Release

  4. Payment

  5. Illegality

  6. Statute of frauds

  7. Estoppel

  8. Former recovery

  9. Discharge in bankruptcy

  10. Any other matter by way of confession and avoidance (Sec. 5[b], Rule 6)




  1. A counterclaim is any claim which a defending party may have against an opposing party (Sec. 6, Rule 6). It is in itself a claim or cause of action interposed in an answer. It is either compulsory or permissive.


Compulsory Counterclaim


  1. A compulsory counterclaim is one which, being cognizable by the regular courts of justice, arises out of or is connected with the transaction or occurrence constituting the subject matter of the opposing party’s claim and does not require for its adjudication, the presence of third parties of whom the court cannot acquire jurisdiction. Such a counterclaim must be within the jurisdiction of the court, both as to the amount and the nature thereof, except that in an original action before the RTC, the counterclaim may be considered compulsory regardless of the amount (Sec. 7, Rule 6).

  2. It is compulsory where:

  1. It arises out of, or is necessarily connected with the transaction or occurrence that is the subject matter of the opposing party’s claim;

  2. It does not require jurisdiction; and

  3. The trial court has jurisdiction to entertain the claim.

  1. The tests to determine whether or not a counterclaim is compulsory are:

  1. Are the issues of fact or law raised by the claim counterclaim largely the same?

  2. Would res judicata bar a subsequent suit on defendant’s claims absent the compulsory counterclaim rule?

  3. Will substantially the same evidence support or refute plaintiff’s claim as well as the defendant’s counterclaim? and

  4. Is there any logical relation between the claim and the counterclaim? (Financial Building Corp. vs. Forbes Park Assn. Inc., 338 SCRA 811).


Permissive Counterclaim


  1. Permissive counterclaim is a counterclaim which does not arise out of nor is it necessarily connected with the subject matter of the opposing party’s claim. It is not barred even if not set up in the action.

  2. The requirements of a permissive counterclaim are:

  1. It does not require for its adjudication the presence of third parties of whom the court cannot acquire jurisdiction;

  2. It must be within the jurisdiction of the court wherein the case is pending and is cognizable by the regular courts of justice; and

  3. It does not arise out of the same transaction or series of transactions subject of the complaint.


Effect on the Counterclaim when the complaint is dismissed


  1. If a counterclaim has already been pleaded by the defendant prior to the service upon him of the plaintiff’s motion to dismiss, and the court grants the said motion to dismiss, the dismissal shall be limited to the complaint (Sec. 2, Rule 17). The dismissal upon motion of plaintiff shall be without prejudice to the right of the defendant to prosecute the counterclaim. The defendant if he so desires may prosecute his counterclaim either in a separate action or in the same action. Should he choose to have his counterclaim resolved in the same action, he must notify the court of his preference within 15 days from notice of the plaintiff’s motion to dismiss. Should he opt to prosecute his counterclaim in a separate action, the court should render the corresponding order granting and reserving his right to prosecute his claim in a separate complaint. A class suit shall not be dismissed or compromised without the approval of the court.

  2. The dismissal of the complaint under Sec. 3 (due to fault of plaintiff) is without prejudice to the right of the defendant to prosecute his counterclaim in the same action or in a separate action. This dismissal shall have the effect of an adjudication upon the merits, unless otherwise declared by the court. The dismissal of the main action does not carry with it the dismissal of the counterclaim (Sec. 6, Rule 16).




  1. A cross-claim is any claim 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 counterclaim 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 of part of a claim asserted in the action against the cross-claimant (Sec. 8, Rule 6).


Third (fourth, etc.) party complaints


  1. It is a claim that a defending party may, with leave of court, file against a person not a party to the action, called the third (fourth, etc.)–party defendant, for contribution, indemnity, subrogation or any other relief, in respect of his opponent’s claim.




  1. Complaint-in-intervention is a pleading whereby a third party asserts a claim against either or all of the original parties. If the pleading seeks to unite with the defending party in resisting a claim against the latter, he shall file an answer-in-intervention.

  2. If at any time before judgment, a person not a party to the action believes that he has a legal interest in the matter in litigation in a case in which he is not a party, he may, with leave of court, file a complaint-in-intervention in the action if he asserts a claim against one or all of the parties.




  1. Replay 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 matters. It a party does not file such reply, all the new matters alleged in the answer are deemed controverted (Sec. 10, Rule 6).


Pleadings allowed in small claim cases and cases covered by the rules on summary procedure


  1. The only pleadings allowed under the Rules on Summary Procedure are complaint, compulsory counterclaim, cross-claim, pleaded in the answer, and answers thereto (Sec. 3[A]). These pleadings must be verified (Sec. 3[B]).

  2. The only pleadings allowed under small claim cases are:



Parts of a Pleading (Rule 7)


  1. The parts of a pleading under Rule 7 are: the caption (Sec. 1), the text or the body (Sec. 2), the signature and address (Sec. 3), the verification (Sec. 4), and the certification against forum shopping (Sec. 5).




  1. The caption must set forth the name of the court, the title of the action, and the docket number if assigned. The title of the action indicates the names of the parties. They shall all e named in the original complaint or petition; but in subsequent pleadings, it shall be sufficient if the name of the first party on each side be stated with an appropriate indication when there are other parties. Their respective participation in the case shall be indicated.


Signature and address


  1. Every pleading must be signed by the party or counsel representing him, stating in either case his address which should not be a post office box.

  2. 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 good ground to support it; and that it is not interposed for delay.

  3. 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. Counsel who deliberately files an unsigned pleading, or signs a pleading in violation of the Rule, or alleges scandalous or indecent matter therein, or fails to promptly report to the court a change of his address, shall be subject to appropriate disciplinary action.

  4. In every pleading, counsel has to indicate his professional tax receipt (PTR) and IBP receipt, the purpose of which is to see to it that he pays his tax and membership due regularly




  1. A verification of a pleading is an affirmation under oath by the party making the pleading that he is prepared to establish the truthfulness of the facts which he has pleaded based on his own personal knowledge.

  2. The general rule under, Sec. 4. Rule 7 is that, pleading need not be under oath. This means that a pleading need not be verified. A pleading will be verified only when a verification is required by a law or by a rule.

  3. A pleading is verified by and affidavit, which declares that: (a) the affiant has read the pleading, and (b) the allegations therein are true and correct to his personal knowledge or based on authentic records.

  4. The verification requirement is significant, as it is intended to secure an assurance that the allegations in a pleading are true and correct and not the product of the imagination or a matter of speculation, and that the pleading is filed in good faith. The absence of proper verification is cause to treat the pleading as unsigned and dismissable.

  5. It is, however, been held that the absence of a verification or the non-compliance with the verification requirement does not necessarily render the pleading defective. It is only a formal and not a jurisdictional requirement. The requirement is a condition affecting only the form of the pleading (Sarmeinto vs. Zaratan, GR 167471, Feb. 5, 2007). The absence of a verification may be corrected by requiring an oath. The rule is in keeping with the principle that rules of procedure are established to secure substantial justice and that technical requirements may be dispensed with in meritorious cases (Pampanga Development Sugar Co. vs. NLRC, 272 SCRA 737). The court may order the correction of the pleading or act on an unverified pleading if the attending circumstances are such that strict compliance would not fully serve substantial justice, which after all, is the basic aim for the rules of procedure (Robert Development Corp. vs. Quitain, 315 SCRA 150).


Certification against forum-shopping


  1. The certification against forum shopping is a sworn statement certifying to the following matters:

  1. That the party has not commenced or filed any claim involving the same issues in any court, tribunal, or quasi-judicial agency and, to the best of his knowledge, no such other action or claim is pending;

  2. That if there is such other pending action or claim, a complete statement of the present status thereof; and

  3. That if he should therefore learn that the same or similar action or claim has been filed or is pending, he shall report that fact within five (5) days therefrom to the court wherein his aforesaid complaint or initiatory pleading has been filed.

  1. The certification is mandatory under Sec. 5, Rule 7, but nor jurisdictional (Robert Development Corp. vs. Quitain, 315 SCRA 150).

  2. There is forum shopping when, as a result of an adverse opinion in one forum, a party seeks a favorable opinion, other than by appeal or certiorari in another. There can also be forum shopping when a party institutes two or more suits in different courts, either simultaneously or successively, in order to ask the courts to rule on the same or related causes and/or to grant the same or substantially the same reliefs on the supposition that one or the other court would make a favorable disposition or increase a party’s chances of obtaining a favorable decision or action (Huibonhoa vs. Concepcion, GR 153785, Aug. 3, 2006). It is an act of malpractice, as the litigants trifle with the courts and abuse their processes. It is improper conduct and degrades the administration of justice. If the act of the party or its counsel clearly constitutes willful and deliberate forum-shopping, the same shall constitute direct contempt, and a cause for administrative sanctions, as well as a ground for the summary dismissal of the case with prejudice (Montes vs. CA, GR 143797, May 4, 2006). Forum shopping exists when the elements of litis pendentia are present or where a final judgment in one case will amount to res judicata in another.

  3. It is the plaintiff or principal party who executes the certification under oath, and not the attorney. It must be signed by the party himself and cannot be signed by his counsels. As a general and prevailing rule, a certification signed by counsel is a defective certification and is a valid cause for dismissal (Far Eastern Shipping Co. vs. CA, 297 SCRA 30).

  4. This certification is not necessary when what is filed is a mere motion for extension, or in criminal cases and distinct causes of action.


Requirements of a corporation executing the verification/certification on non-forum shopping


  1. A juridical entity, unlike a natural person, can only perform physical acts through properly delegated individuals. The certification against forum shopping where the plaintiff or a principal party is a juridical entity like a corporation may be executed by properly authorized persons. This person may be the lawyer of a corporation. As long as he is duly authorized by the corporation and has personal knowledge of the facts required to be disclosed in the certification against forum shopping, the certification may be signed by the authorized lawyer (National Steel Corp. vs. CA, 388 SCRA 85).


Effect of the signature of counsel in a pleading


  1. A certification signed by a counsel is a defective certification and is a valid cause for dismissal (Far Eastern Shipping Company vs. CA, 297 SCRA 30). This is the general and prevailing rule. A certification by counsel and not by the principal party himself is no certification at all. The reason for requiring that it must be signed by the principal party himself is that he has actual knowledge, or knows better than anyone else, whether he has initiated similar action/s in other courts, agencies or tribunals. Their lawyer’s explanation that they were out of town at the time their petition was filed with the CA is bereft of basis. That explanation is an afterthought as it was not alleged by counsel in her certification against forum shopping (Go vs. Rico, GR 140682, April 25, 2006).


Allegations in a pleading


  1. Every pleading shall contain in a mathematical and logical form, a plain, concise and direct statement of the ultimate facts on which the party relies for his claim and defense, as the case may be, containing the statement of mere evidenciary facts (Sec. 1, Rule 8).


Manner of making allegations (Rule 8)


Condition precedent


  1. Conditions precedent are matters which must be complied with before a cause of action arises. When a claim is subject to a condition precedent, the compliance of the same must be alleged in the pleading.

  2. Failure to comply with a condition precedent is an independent ground for a motion to dismiss: that a condition precedent for filing the claim has not been complied (Sec. 1[j], Rule 16).


Fraud, mistake, malice, intent, knowledge and other condition of the mind, judgments, official documents or acts


  1. When making averments of fraud or mistake, the circumstances constituting such fraud or mistake must be stated with particularity (Sec. 5, Rule 8). It is not enough therefore, for the complaint to allege that he was defrauded by the defendant. Under this provision, the complaint must state with particularity the fraudulent acts of the adverse party. These particulars would necessarily include the time, place and specific acts of fraud committed against him.

  2. Malice, intent, knowledge or other conditions of the mind of a person may be averred generally (Sec. 5, Rule 8). Unlike in fraud or mistake, they need not be stated with particularity. The rule is borne out of human experience. It is difficult to state the particulars constituting these matters. Hence, a general averment is sufficient.


Pleading an actionable document


  1. An actionable document is a document relied upon by either the plaintiff or the defendant. A substantial number of complaints reaching the courts shows that the plaintiff’s cause of action of the defendant’s defense is based upon a written instrument or a document.

  2. Whenever an actionable document is the basis of a pleading, the rule specifically direct the pleader to set forth in the pleading the substance of the instrument or the document, (a) and to attach the original or the copy of the document to the pleading as an exhibit and to be part of the pleading; or (b) with like effect, to set forth in the pleading said copy of the instrument or document (Sec. 7, Rule 8). This manner of pleading a document applies only to one which is the basis of action or a defense. Hence, if the document does not have the character of an actionable document, as when it is merely evidentiary, it need not be pleaded strictly in the manner prescribed by Sec. 7, Rule 8.


Specific denials


  1. There are three modes of specific denial which are contemplated by the Rules, namely:

  1. By specifying each material allegation of the fact in the complaint, the truth of which the defendant does not admit, and whenever practicable, setting forth the substance of the matter which he will rely upon to support his denial;

  2. By specifying so much of the averment in the complaint as is true and material and denying only the remainder;

  3. By stating that the defendant is without knowledge or information sufficient to form a belief as to the truth of a material averment in the complaint, which has the effect of denial (Gaza vs Lim, GR 126863, Jan. 16, 2003)

  1. The purpose of requiring the defendant to make a specific denial is to make him disclose the matters alleged in the complaint which he succinctly intends to disprove at the trial, together with the matter which he relied upon to support the denial. The parties are compelled to lay their cards on the table (Aquintey vs. Tibong, GR 166704, Dec. 20, 2006).


Effect of failure to make specific denials


  1. If there are material averments in the complaint other than those as to the amount of unliquidated damages, these shall be deemed admitted when not specifically denied (Sec. 11, Rule 8).

  2. Material allegations, except unliquidated damages, not specifically denied are deemed admitted. If the allegations are deemed admitted, there is no more triable issue between the parties and if the admissions appear in the answer of the defendant, the plaintiff may file a motion for judgment on the pleadings under Rule 34.

  3. An admission in a pleading cannot be controverted by the party making such admission because the admission is conclusive as to him. All proofs submitted by him contrary thereto or inconsistent therewith should be ignored whether an objection is interposed by a party or not (Republic vs. Sarabia, GR 157847, Aug. 25, 2005). Said admission is a judicial admission, having been made by a party in the course of the proceedings in the same case, and does not require proof. A party who desires to contradict his own judicial admission may do so only be either of two ways: (a) by showing that the admission was made through palpable mistake; or (b) that no such admission was made (Sec. 4, Rule 129).

  4. The following are not deemed admitted by the failure to make a specific denial:

  1. The amount of unliquidated damages;

  2. Conclusions in a pleading which do not have to be denied at all because only ultimate facts need be alleged in a pleading;

  3. Non-material allegations, because only material allegations need be denied.


When a specific denial requires an oath


  1. Specific denials which must be under oath to be sufficient are:

  1. A denial of an actionable document (Sec. 8, Rule 8);

  2. A denial of allegations of usury in a complaint to recover usurious interest (Sec. 11, Rule 8).


Effect of failure to plead (Rule 9)


Failure to plead defenses and objections


  1. Defenses or objections no pleaded in either in a motion to dismiss or in the answer, they are deemed waived. Except:

  1. When it appears from the pleading or the pieces of evidence on record that the court has no jurisdiction over the subject matter;

  2. That there is another action pending between the same parties for the same cause;

  3. That the action is barred by the statute of limitations (same as Sec. 8, Rule 117);

  4. Res judicata. In all these cases, the court shall dismiss the claim (Sec. 1, Rule 9).


Failure to plead a compulsory counterclaim and cross-claim


  1. A compulsory counterclaim or a cross-claim not set up shall be barred (Sec. 2, Rule 9).




  1. Default is a procedural concept that occurs when the defending party fails to file his answer within the reglementary period. It does not occur from the failure of the defendant to attend either the pre-trial or the trial.


When a declaration of default is proper


  1. If the defending party fails to answer within the time allowed therefor, the court shall, upon motion of the claiming party with notice to the defending party, and proof of such failure, declare the defending party in default (Sec. 3, Rule 9).


Effect of an order of default


  1. A party in default shall be entitled to notice of subsequent proceedings but not to take part in the trial (Sec. 3[a], Rule 9).


Relief from an order of default


  1. Remedy after notice of order and before judgment:

  1. Motion to set aside order of default, showing that (a) the failure to answer was due to fraud, accident, mistake, or excusable negligence, and (b) the defendant has a meritorious defense—there must be an affidavit of merit (Sec. 3[b], Rule 9).

  1. Remedy after judgment but before finality:

  1. Motion for new trial under Rule 37; or

  2. Appeal from the judgment as being contrary to the evidence or the law;

  1. Remedy after judgment becomes final and executor:

  1. Petition for relief from judgment under Rule 38;

  2. Action for nullity of judgment under Rule 47.

  1. If the order of default is valid, Certiorari is not available. If the default order was improvidently issued, that is, the defendant was declared in default, without a motion, or without having served with summons before the expiration of the reglementary period to answer, Certiorari is available as a remedy (Matute vs. CS, 26 SCRA 798; Akut vs. CA, 116 SCRA 216).


Effect of a partial default


  1. When a pleading asserting a claim states a common cause of action against several defending parties, some of whom answer and the others fail to do so, the court shall try the case against all upon the answers thus filed and render judgment upon the evidence presented (Sec. 33[c], Rule 9).


Extent of relief


  1. A judgment rendered against a party in default may not exceed the amount or be different from that prayed for nor include unliquidated damages which are not awarded (Sec. 3[c], Rule 9). In fact, there can be no automatic grant of relief as the court has to weigh the evidence. Furthermore, there can be no award of unliquidated damages (Gajudo vs. Traders Royal Bank, GR 151098, March 31, 2006).


Actions where default are not allowed


  1. Annulment of marriage;

  2. Declaration of nullity of marriage; and

  3. Legal separation


The court shall order the prosecuting attorney to investigate whether or not a collusion between the parties exists, and if there is no collusion, to intervene for the State in order to see to it that the evidence submitted is not fabricated (Sec. 3[e], Rule 9).



Filing and Service of pleadings (Rule 13)


Payment of docket fees

  1. On acquisition of jurisdiction. It is not simply the filing of the complaint or appropriate initiatory pleading but the payments of the prescribed docket fee, that vests a trial court with jurisdiction over the subject matter or nature of the action (Proton Pilipinas Corp. vs. Banque National de Paris, 460 SCRA 260). In connection with the payment of docket fees, the court requires that all complaints, petitions, answers and similar pleadings must specify the amount of damages being prayed for both in the body of the pleading and in prayer therein and said damages shall be considered in the assessment of the filing fees; otherwise such pleading shall not be accepted for filing or shall be expunged from the record. Any defect in the original pleading resulting in underpayment of the docket fee cannot be cured by amendment, such as by the reduction of the claim as, for all legal purposes, there is no original complaint over which the court has acquired jurisdiction (Manchester Development Corp. vs. CA, GR 75919, May 7, 1987).

  2. The rule on payment of docket fee has, in some instances, been subject to the rule on liberal interpretation. Thus, in a case, it was held that while the payment of the required docket fee is a jurisdictional requirement, even its nonpayment at the time of filing does not automatically cause the dismissal of the case, as long as the fee is paid within the applicable prescriptive or reglementary period (PGCOR vs. Lopez, 474 SCRA 76; Sun Insurance Office vs. Asuncion, 170 SCRA 272). Also, if the amount of docket fees is insufficient considering the amount of the claim, the party filing the case will be required to pay the deficiency, but jurisdiction is not automatically lost (Rivera vs. Del Rosario, GR 144934, Jan. 15, 2004).

  3. On appeal. The Rules now requires that appellate docket and other lawful fees must be paid within the same period for taking an appeal. This is clear from the opening sentence of Sec. 4, Rule 41 of the same rules that, “Within the period for taking an appeal, the appellant shall pay to the clerk of court which rendered the judgment or final order appealed from, the full amount of the appellate court docket and other lawful fees.”

  4. The Supreme Court has consistently held that payment of docket fee within the prescribed period is mandatory for the perfection of an appeal. Without such payment, the appellate court does not acquire jurisdiction over the subject matter of the action and the decision sought to be appealed from becomes final and executor (Regalado vs. Go, GR 167988, Feb. 6, 2007). Hence, nonpayment is a valid ground for the dismissal of an appeal (MA Santander Construction vs. Villanueva, GR 136477, Nov. 10, 2004). However, delay in the payment of the docket fees confers upon the court a discretionary, not a mandatory power to dismiss an appeal (Villamor vs. CA, GR 136858, Jan. 21, 2004).


Filing versus service of pleadings


  1. Filing is the act of presenting the pleading or other paper to the clerk of court;

  2. Service is the act of providing a party with a copy of the pleading or paper concerned (Sec. 2, Rule 13).


Periods of filing of pleadings


  1. 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 (Sec. 3, Rule 13)


Manner of filing


  1. By personal service or by registered mail. 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 (Sec. 3, Rule 13).


Modes of service


  1. There are two modes of service of pleadings, judgments, motions, notices, orders, judgments and other papers: (a) personally, or (b) by mail. However, if personal service and serviced by mail cannot be made, service shall be done by ‘substituted service’.

  2. Personal service is the preferred mode of service. If another mode of service is used other than personal service, the service must be accompanied by a written explanation why the service of filing was not done personally. Exempt from this explanation are papers emanating from the court. A violation of this explanation requirement may be a cause for the paper to be considered as not having been filed (Sec. 11, Rule 13).

  3. Personal service is made by: (a) delivering a copy of the papers served personally to the party or his counsel, or (b) by leaving the papers in his office with his clerk or a person having charge thereof. If no person is found in the office, or his office is not known or he has no office, then by leaving a copy of the papers at the party’s or counsel’s residence, if known, with a person of sufficient age and discretion residing therein between eight in the morning and six in the evening (Sec. 6, Rule 13).


Service by mail


  1. The preferred service by mail is by registered mail. Service by ordinary mail may be done only if no registry service is available in the locality of either the sender or the addressee (Sec. 7, Rule 13). It shall be done by depositing the copy in the post office, in a sealed envelope, plainly addressed to the party or his counsel at his office, if known, or otherwise at his residence, if known, with postage fully prepaid, and with instructions to the postmaster to return the mail to the sender after ten (10) days if not delivered.


Substituted service


  1. This mode is availed of only when there is failure to effect service personally or by mail. This failure occurs when the office and residence of the party or counsel is unknown. Substituted service is effected by delivering the copy to the clerk of court, with proof of failure of both personal service and service by mail (Sec. 8, Rule 13). Substituted service is complete at the time of delivery of the copy to the clerk of court.


Service of judgments, final orders or resolutions


  1. Final orders or judgments shall be served either personally or by registered mail. When a party summoned by publication has failed to appear in the action, final orders or judgments against him shall be served upon him also by publication at the expense of the prevailing party (Sec. 9).


Priorities in modes of service and filing


  1. Personal service is the preferred mode of service.

  2. The preferred service by mail is by registered mail.

  3. The following papers are required to be filed in court and served upon the parties affected:

  1. Judgments

  2. Resolutions

  3. Orders

  4. Pleadings subsequent to the complaint

  5. Written motions

  6. Notices

  7. Appearances

  8. Demands

  9. Offers of judgment

  10. Similar papers (Sec. 4, Rule 13).


When service is deemed complete


  1. Personal service is deemed complete upon the actual delivery following the above procedure (Sec. 10, Rule 13).

  2. Service by ordinary mail is deemed complete upon the expiration of ten (10) days after mailing, unless the court otherwise provides. On the other hand, 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 is earlier (Sec. 8, Rule 13).

  3. Substituted service is complete at the time of delivery of the copy to the clerk of court.


Proof of filing and service


  1. 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 in a copy of the same (Sec. 12, Rule 13).

  2. If the filing or paper is filed by registered mail, proof of filing is 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 (Sec. 12, Rule 13).

  3. Proof of personal service shall consist of the written admission of the party served. It may also be proven by the official return of the server, or the affidavit of the party serving, containing full information of the date, place and manner of service (Sec. 13, Rule 13). If the service is by ordinary mail, proof thereof shall consist of the affidavit of the person mailing of the facts showing compliance with Sec. 7, Rule 13. If the service is by registered mail, the proof shall consist of such affidavit and the registry receipt issued by the mailing office. The registry return card is to 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 (Sec. 13, Rule 13).


Amendment (Rule 10)


Amendment as a matter of right


  1. A plaintiff has the right to amend his complaint once at any time before a responsive pleading is served by the other party or in case of a reply to which there is no responsive pleading, at any time within ten (10) days after it is served (Sec. 2, Rule 10). Thus, before an answer is served on the plaintiff, the latter may amend his complaint as a matter of right. The defendant may also amend his answer, also as a matter of right, before a reply is served upon him. Sec. 2 refers to an amendment made before the trial court, not to amendments before the CA. the CA is vested with jurisdiction to admit or deny amended petitions filed before it (Navarro Vda. De Taroma, 478 SCRA 336). Hence, even if no responsive pleading has yet been served, if the amendment is subsequent to a previous amendment made as a matter of right, the subsequent amendment must be with leave of court.


Amendments by leave of court


  1. Leave of court is required for substantial amendment made after service of a responsive pleading (Sec. 3, Rule 10). The plaintiff, for example, cannot amend his complaint by changing his cause of action or adding a new one without leave of court (Calo and San Jose vs. Roldan, 76 Phil. 445; Buenaventura vs. Buenaventura, 94 Phil. 193).

  2. After a responsive pleading is filed, an amendment to the complaint may be substantial and will correspondingly require a substantial alteration in the defenses of the adverse party. The amendment of the complaint is not only unfair to the defendant but will cause unnecessary delay in the proceedings. Leave of court is thus, required. On the other hand, where no responsive pleading has yet been served, no defenses would be altered. The amendment of the pleading will not then require leave of court (Siasoco vs.CA, 303 SCRA 186).


Formal amendment


  1. A defect in the designation of the parties and other clearly clerical or typographical errors may be summarily corrected by the court at any stage of the action, at its initiative or on motion, provided no prejudice is caused thereby to the adverse party (Sec. 4, Rule 10).


Amendments to conform to or authorize presentation of evidence


  1. When issues not raised by the pleadings are tried with the express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings. Such amendment of the pleadings as may be necessary to cause them to conform to the evidence and to raise these issues may be made upon motion of any party at any time, even after judgment; but failure to amend does not affect the result of the trial of these issues. If evidence is objected to at the trial on the ground that it is not within the issues made by the pleadings, the court may allow the pleadings to be amended and shall do so with liberality if the presentation of the merits of the action and the ends of substantial justice will be subserved thereby. The court may grant a continuance to enable the amendment to be made (Sec. 5, Rule 10).


Different from supplemental pleadings


  1. A supplemental pleading is one which sets forth transactions, occurrences, or events which have happened since the date of the pleading sought to be supplemented. The filing of supplemental pleadings requires leave of court. The court may allow the pleading only upon such terms as are just. This leave is sought by the filing of a motion with notice to all parties (Sec. 6, Rule 10).

  2. 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 with the original; it does not replace that which it supplements’ it does not supersede the original but assumes that the original pleading remain as the 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, GR 128325, Sept. 14, 1999).


Effect of amended pleading


  1. An amended pleading supersedes the original one which it amends (Sec. 8, Rule 10). The original pleading loses its status as a pleading, is deemed withdrawn and disappears from the record. It has been held that the original complaint is deemed superseded and abandoned by the amendatory complaint only if the latter introduces a new or different cause of action (Versoza vs. CA, 299 SCRA 100).

  2. The original pleading is superseded or disappears from the records. The defenses in the original pleadings not reproduced in the amended pleadings are waived (Magaspi vs. Remolete, 115 SCRA 193).



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