PROCEDURE IN
REGIONAL TRIAL COURTS
[Rules 6 to
39]
KINDS OF
PLEADINGS
Section 1. Pleadings defined.
Pleadings are
the written statements of the respective claims and defenses of the parties
submitted to the court for appropriate judgment.
Sec. 2. Pleadings allowed.
The claims of
a party are asserted in a complaint, counterclaim, cross-claim, third (fourth,
etc.) party complaint, or complaint-in-intervention.
The defenses of a party are alleged in
the answer to the pleading asserting a claim against him.
An answer may be responded to by a reply.
An answer may be responded to by a reply.
Sec. 3. Complaint.
The complaint
is the pleading alleging the plaintiff's cause or causes of action. The names
and residences of the plaintiff and defendant must be stated in the complaint.
Sec. 4. Answer.
An answer is a
pleading in which a defending party sets forth his defenses.
Sec. 5. Defenses.
Defenses may
either be negative or affirmative.
(a) 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.
(b) 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 by him. The affirmative defenses include fraud, statute of
limitations, release, payment, illegality, statute of frauds, estoppel, former
recovery, discharge in bankruptcy, and any other matter by way of confession
and avoidance.
Sec. 6. Counterclaim.
A counterclaim
is any claim which a defending party may have against an opposing party.
Sec. 7. Compulsory counterclaim.
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 Regional Trial Court, the counterclaim may be considered compulsory
regardless of the amount.
Sec. 8. Cross-claim.
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
or part of a claim asserted in the action against the cross-claimant.
Sec. 9. Counter-counterclaims and counter-cross-claims.
A counterclaim
may be asserted against an original counter-claimant.
A cross-claim may also be filed
against an original cross-claimant.
Sec. 10. Reply.
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. If a party does not file such reply,
all the new matters alleged in the answer are deemed controverted.
If the plaintiff wishes to interpose
any claims arising out of the new matters so alleged, such claims shall be set
forth in an amended or supplemental complaint.
Sec. 11. Third, (fourth, etc.) party
complaint.
A third
(fourth, etc.) 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
third (fourth, etc.) party defendant, for contribution, indemnity, subrogation
or any other relief, in respect of his opponent's claim.
Sec. 12. Bringing new parties.
When the
presence of parties other than those to the original action is required for the
granting of complete relief in the determination of a counterclaim or
cross-claim, the court shall order them to be brought in as defendants, if
jurisdiction over them can be obtained.
Sec. 13. Answer to third (fourth,
etc.) party complaint.
A third
(fourth, etc.) party defendant may allege in his answer his defenses,
counterclaims or cross-claims, including such defenses that the third (fourth,
etc.) party plaintiff may have against the original plaintiff's claim. In
proper cases, he may also assert a counterclaim against the original plaintiff
in respect of the latter's claim against the third-party plaintiff.
PARTS OF A
PLEADING
Section 1. Caption.
The caption
sets 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 be 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.
Sec. 2. The body.
The body of
the pleading sets forth its designation, the allegations of the party's claims
or defenses, the relief prayed for, and the date of the pleading.
(a) Paragraphs. - The allegations in
the body of a pleading shall be divided into paragraphs so numbered as to be
readily identified, each of which shall contain a statement of a single set of
circumstances so far as that can be done with convenience. A paragraph may be
referred to by its number in all succeeding pleadings.
(b) Headings. - When two or more
causes of action are joined, the statement of the first shall be prefaced by
the words "first cause of action," of the second by "second
cause of action," and so on for the others.
When one or more paragraphs in the
answer are addressed to one of several causes of action in the complaint, they
shall be prefaced by the words "answer to the first cause of action"
or "answer to the second cause of action" and so on; and when one or
more paragraphs of the answer are addressed to several causes of action, they
shall be prefaced by words to that effect.
(c) Relief. - The pleading shall
specify the relief sought, but it may add a general prayer for such further or
other relief as may be deemed just or equitable.
(d) Date. - Every pleading shall be
dated.
Sec. 3. Signature and address.
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.
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.
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 this 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.
Sec. 4. Verification.
Except when
otherwise specifically required by law or rule, pleadings need not be under
oath, verified or accompanied by affidavit.
A pleading is verified by an affidavit
that the affiant has read the pleading and that the allegations therein are
true and correct of his knowledge and belief.
A pleading required to be verified
which contains a verification based on "information and belief," or
upon "knowledge, information and belief," or lacks a proper
verification, shall be treated as an unsigned pleading.
Sec. 5. Certification against forum
shopping.
The plaintiff
or principal party shall certify under oath in the complaint or other
initiatory pleading asserting a claim for relief, or in a sworn certification
annexed thereto and simultaneously filed therewith: (a) that he has not
theretofore commenced any action 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 therein; (b) if there is
such other pending action or claim, a complete statement of the present status
thereof; and (c) if he should thereafter 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.
Failure to comply with the foregoing
requirements shall not be curable by mere amendment of the complaint or other
initiatory pleading but shall be cause for the dismissal of the case without
prejudice, unless otherwise provided, upon motion and after hearing. The
submission of a false certification or non-compliance with any of the
undertakings therein shall constitute indirect contempt of court, without
prejudice to the corresponding administrative and criminal actions. If the acts
of the party or his counsel clearly constitute willful and deliberate forum
shopping, the same shall be ground for summary dismissal with prejudice and
shall constitute direct contempt, as well as a cause for administrative
sanctions.
MANNER OF
MAKING ALLEGATIONS IN PLEADINGS
Section 1. In general.
Every pleading
shall contain in a methodical and logical form, a plain, concise and direct
statement of the ultimate facts on which the party pleading relies for his
claim or defense, as the case may be, omitting the statement of mere evidentiary
facts.
If a defense relied on is based on
law, the pertinent provisions thereof and their applicability to him shall be
clearly and concisely stated.
Sec. 2. Alternative causes of action
or defenses.
A party may
set forth two or more statements of a claim or defense alternatively or
hypothetically, either in one cause of action or defense or in separate causes
of action or defenses. When two or more statements are made in the alternative
and one of them if made independently would be sufficient, the pleading is not
made insufficient by the insufficiency of one or more of the alternative
statements.
Sec. 3. Conditions precedent.
In any
pleading a general averment of the performance or occurrence of all conditions
precedent shall be sufficient.
Sec. 4. Capacity.
Facts showing
the capacity of a party to sue or be sued or the authority of a party to sue or
be sued in a representative capacity or the legal existence of an organized
association of persons that is made a party, must be averred. A party desiring
to raise an issue as to the legal existence of any party or the capacity of any
party to sue or be sued in a representative capacity, shall do so by specific
denial, which shall include such supporting particulars as are peculiarly
within the pleader's knowledge.
Sec. 5. Fraud, mistake, condition of
the mind.
In all
averments of fraud or mistake, the circumstances constituting fraud or mistake
must be stated with particularity. Malice, intent, knowledge or other condition
of the mind of a person may be averred generally.
Sec. 6. Judgment.
In pleading a
judgment or decision of a domestic or foreign court, judicial or quasi-judicial
tribunal, or of a board or officer, it is sufficient to aver the judgment or
decision without setting forth matter showing jurisdiction to render it.
Sec. 7. Action or defense based on
document.
Whenever an
action or defense is based upon a written instrument or document, the substance
of such instrument or document shall be set forth in the pleading, and the
original or a copy thereof shall be attached to the pleading as an exhibit,
which shall be deemed to be a part of the pleading, or said copy may with like
effect be set forth in the pleading.
Sec. 8. How to contest such documents.
When an action
or defense is founded upon a written instrument, copied in or attached to the
corresponding pleading as provided in the preceding section, 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 instrument is refused.
Sec. 9. Official document or act.
In pleading an
official document or official act, it is sufficient to aver that the document
was issued or the act done in compliance with law.
Sec. 10. Specific denial.
A defendant
must specify each material allegation of fact the truth of which he does not
admit and, whenever practicable, shall set forth the substance of the matters
upon which he relies to support his denial. Where a defendant desires to deny
only a part of an averment, he shall specify so much of it as is true and
material and shall deny only the remainder. Where a defendant is without
knowledge or information sufficient to form a belief as to the truth of a
material averment made in the complaint, he shall so state, and this shall have
the effect of a denial.
Sec. 11. Allegations not specifically
denied deemed admitted.
Material
averment in the complaint, other than those as to the amount of unliquidated
damages, shall be deemed admitted when not specifically denied. Allegations of
usury in a complaint to recover usurious interest are deemed admitted if not
denied under oath.
Sec. 12. Striking out of pleading or
matter contained therein.
Upon motion
made by a party before responding to a pleading or, if no responsive pleading
is permitted by these Rules, upon motion made by a party within twenty (20)
days after the service of the pleading upon him, or upon the court's own
initiative at any time, the court may order any pleading to be stricken out or
that any sham or false, redundant, immaterial, impertinent, or scandalous
matter be stricken out therefrom.
EFFECT OF
FAILURE TO PLEAD
Section 1. Defenses and objections not pleaded.
Defenses and
objections not pleaded either in a motion to dismiss or in the answer are
deemed waived. However, when it appears from the pleadings or the evidence on
record that the court has no jurisdiction over the subject matter, that there
is another action pending between the same parties for the same cause, or that
the action is barred by a prior judgment or by statute of limitations, the
court shall dismiss the claim.
Sec. 2. Compulsory counterclaim, or
cross-claim, not set up barred.
A compulsory
counterclaim, or a cross-claim, not set up shall be barred.
Sec. 3. Default; declaration of.
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. Thereupon,
the court shall proceed to render judgment granting the claimant such relief as
his pleading may warrant, unless the court in its discretion requires the
claimant to submit evidence. Such reception of evidence may be delegated to the
clerk of court.
(a) Effect of order of default. - A
party in default shall be entitled to notice of subsequent proceedings but not
to take part in the trial.
(b) Relief from order of default. - A
party declared in default may at any time after notice thereof and before
judgment file a motion under oath to set aside the order of default upon proper
showing that his failure to answer was due to fraud, accident, mistake or
excusable negligence and that he has a meritorious defense. In such case, the
order of default may be set aside on such terms and conditions as the judge may
impose in the interest of justice.
(c) Effect of partial default. - 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.
(d) Extent of relief to be awarded. -
A judgment rendered against a party in default shall not exceed the amount or
be different in kind from that prayed for nor award unliquidated damages.
(e) Where no defaults allowed. - If
the defending party in an action for annulment or declaration of nullity of
marriage or for legal separation fails to answer, 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.
AMENDED AND
SUPPLEMENTAL PLEADINGS
Section 1. Amendments in general.
Pleadings may
be amended by adding or striking out an allegation or the name of any party, or
by correcting a mistake in the name of a party or a mistaken or inadequate
allegation or description in any other respect, so that the actual merits of
the controversy may speedily be determined, without regard to technicalities,
and in the most expeditious and inexpensive manner.
Sec. 2. Amendments as a matter of
right.
A party may
amend his pleading once as a matter of right at any time before a responsive
pleading is served or, in the case of a reply, at any time within ten (l0) days
after it is served.
Sec. 3. Amendments by leave of court.
Except as
provided in the next preceding section, substantial amendments may be made only
upon leave of court. But such leave may be refused if it appears to the court
that the motion was made with intent to delay. Orders of the court upon the
matters provided in this section shall be made upon motion filed in court, and
after notice to the adverse party, and an opportunity to be heard.
Sec. 4. Formal amendments.
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. 5. Amendment to conform to or authorize presentation of evidence.
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. 6. Supplemental pleadings.
Upon motion of
a party the court may, upon reasonable notice and upon such terms as are just,
permit him to serve a supplemental pleading setting forth transactions,
occurrences or events which have happened since the date of the pleading sought
to be supplemented. The adverse party may plead thereto within ten (10) days
from notice of the order admitting the supplemental pleading.
Sec. 7. Filing of amended pleadings.
When any
pleading is amended, a new copy of the entire pleading, incorporating the
amendments, which shall be indicated by appropriate marks, shall be filed.
Sec. 8. Effect of amended pleadings.
An amended
pleading supersedes the pleading that it amends. However, admissions in
superseded pleadings may be received in evidence against the pleader; and
claims or defenses alleged therein not incorporated in the amended pleading
shall be deemed waived.
WHEN TO FILE
RESPONSIVE PLEADINGS
Section 1. Answer to the complaint.
The defendant
shall file his answer to the complaint within fifteen (l5) days after service
of summons, unless a different period is fixed by the court.
Sec. 2. Answer of a defendant foreign
private juridical entity.
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
shall be filed within thirty (30) days after receipt of summons by such entity.
Sec. 3. Answer to amended complaint.
Where the
plaintiff files an amended complaint as a matter of right, the defendant shall
answer the same within fifteen (l5) 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.
This Rule shall apply to the answer to
an amended counterclaim, amended cross-claim, amended third (fourth, etc.)
party complaint, and amended complaint-in-intervention.
Sec. 4. Answer to counterclaim or
cross-claim.
A counterclaim
or cross-claim must be answered within ten (l0) days from service.
Sec. 5. Answer to third (fourth,
etc.)- party complaint.
The time to
answer a third (fourth, etc.)- party complaint shall be governed by the same
rule as the answer to the complaint.
Sec. 6. Reply.
A reply may be
filed within ten (l0) days from service of the pleading responded to.
Sec. 7. Answer to supplemental
complaint.
A supplemental
complaint may be answered within ten (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.
Sec. 8. Existing counterclaim or
cross-claim.
A compulsory
counterclaim or a cross-claim that a defending party has at the time he files
his answer shall be contained therein.
Sec. 9. Counterclaim or cross-claim
arising after answer.
A counterclaim
or a cross-claim which either matured or was acquired by a party after serving
his pleading may, with the permission of the court, be presented as a
counterclaim or a cross-claim by supplemental pleading before judgment.
Sec. 10. Omitted counterclaim or
cross-claim.
When a pleader
fails to set up a counterclaim or a cross-claim through oversight,
inadvertence, or excusable neglect, or when justice requires, he may, by leave
of court, set up the counterclaim or cross-claim by amendment before judgment.
Sec. 11. Extension of time to plead.
Upon motion
and on such terms as may be just, the court may extend the time to plead
provided in these Rules.
The court may also, upon like terms,
allow an answer or other pleading to be filed after the time fixed by these
Rules.
BILL OF
PARTICULARS
Section 1. When applied for; purpose.
Before
responding to a pleading, a party may move for a definite statement or for a
bill of particulars of any matter which is not averred with sufficient
definiteness or particularity to enable him properly to prepare his responsive
pleading. If the pleading is a reply, the motion must be filed within ten (10)
days from service thereof. Such motion shall point out the defects complained
of, the paragraphs wherein they are contained, and the details desired.
Sec. 2. Action by the court.
Upon the
filing of the motion, the clerk of court must immediately bring it to the
attention of the court which may either deny or grant it outright, or allow the
parties the opportunity to be heard.
Sec. 3. Compliance with order.
If the motion
is granted, either in whole or in part, the compliance therewith must be
effected within ten (l0) days from notice of the order, unless a different
period is fixed by the court. The bill of particulars or a more definite
statement ordered by the court may be filed either in a separate or in an
amended pleading, serving a copy thereof on the adverse party.
Sec. 4. Effect of non-compliance.
If the order
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. 5. Stay of period to file
responsive pleading.
After service
of the bill of particulars or of a more definite pleading, or after notice of
denial of his motion, the moving party may file his responsive pleading within
the period to which he was entitled at the time of filing his motion, which
shall not be less than five (5) days in any event.
Sec. 6. Bill a part of pleading.
A bill of
particulars becomes part of the pleading for which it is intended.
FILING AND
SERVICE OF PLEADINGS,
JUDGMENTS AND
OTHER PAPERS
Section 1. Coverage.
This Rule
shall govern the filing of all pleadings and other papers, as well as the
service thereof, except those for which a different mode of service is
prescribed.
Sec. 2. Filing and service, defined.
Filing is the
act of presenting the pleading or other paper to the clerk of court.
Service is the act of providing a
party with a copy of the pleading or paper concerned. If any party has appeared
by counsel, service upon him shall be made upon his counsel or one of them,
unless service upon the party himself is ordered by the court. Where one
counsel appears for several parties, he shall only be entitled to one copy of
any paper served upon him by the opposite side.
Sec. 3. Manner of filing.
The filing of
pleadings, appearances, motions, notices, orders, judgments and all other
papers shall be made by presenting the original copies thereof, plainly
indicated as such, personally to the clerk of court or by sending them by
registered mail. In the first case, the clerk of court shall endorse on the
pleading the date and hour of filing. In the second case, the date of the
mailing of motions, pleadings, or any other papers or payments or deposits, as
shown by the post office stamp on the envelope or the registry receipt, shall
be considered as the date of their filing, payment, or deposit in court. The
envelope shall be attached to the record of the case.
Sec. 4. Papers required to be filed
and served.
Every
judgment, resolution, order, pleading subsequent to the complaint, written
motion, notice, appearance, demand, offer of judgment or similar papers shall
be filed with the court, and served upon the parties affected.
Sec. 5. Modes of service.
Service of
pleadings, motions, notices, orders, judgments and other papers shall be made
either personally or by mail.
Sec. 6. Personal service.
Service of the
papers may be made by delivering personally a copy to the party or his counsel,
or by leaving it in his office with his clerk or with a person having charge thereof.
If no person is found in his office, or his office is not known, or he has no
office, then by leaving the copy, between the hours of eight in the morning and
six in the evening, at the party's or counsel's residence, if known, with a
person of sufficient age and discretion then residing therein.
Sec. 7. Service by mail.
Service by
registered mail shall be made by depositing the copy in the office, in a sealed
envelope, plainly addressed to the party or his counsel at his office, if
known, otherwise at his residence, if known, with postage fully pre-paid, and
with instructions to the postmaster to return the mail to the sender after ten
(l0) days if undelivered. If no registry service is available in the locality
of either the sender or the addressee, service may be done by ordinary mail.
Sec. 8. Substituted service.
If service of
pleadings, motions, notices, resolutions, orders and other papers cannot be
made under the two preceding sections, the office and place of residence of the
party or his counsel being unknown, service may be made by delivering the copy
to the clerk of court, with proof of failure of both personal service and
service by mail. The service is complete at the time of such delivery.
Sec. 9. Service of judgments, final
orders or resolutions.
Judgments,
final orders or resolutions shall be served either personally or by registered
mail. When a party summoned by publication has failed to appear in the action,
judgments, final orders or resolutions against him shall be served upon him
also by publication at the expense of the prevailing party.
Sec. 10. Completeness of service.
Personal
service is complete upon actual delivery. Service by ordinary mail is complete
upon the expiration of ten (10) days after mailing, unless the court otherwise
provides. Service by registered mail is complete upon actual receipt by the
addressee, or after five (5) days from the date he received the first notice of
the postmaster, whichever date is earlier.
Sec. 11. Priorities in modes of service
and filing.
Whenever
practicable, the service and filing of pleadings and other papers shall be done
personally. Except with respect to papers emanating from the court, a resort to
other modes must be accompanied by a written explanation why the service or
filing was not done personally. A violation of this Rule may be cause to
consider the paper as not filed.
Sec. 12. Proof of filing.
The filing of
a pleading or paper shall be proved by its existence in the record of the case.
If it is not in the record, but is claimed to have been filed personally, the
filing shall be proved by the written or stamped acknowledgment of its filing
by the clerk of court on a copy of the same; if filed by registered mail, by
the registry receipt and by the affidavit of the person who did the mailing,
containing a full statement of the date and place of depositing the mail in the
post office in a sealed envelope addressed to the court, with postage fully
prepaid, and with instructions to the postmaster to return the mail to the
sender after ten (10) days if not delivered.
Sec. 13. Proof of service.
Proof of
personal service shall consist of a written admission of the party served, or
the official return of the server, or the affidavit of the party serving, containing
a full statement of the date, place and manner of service. If the service is by
ordinary mail, proof thereof shall consist of an affidavit of the person
mailing of facts showing compliance with section 7 of this Rule. If service is
made by registered mail, proof shall be made by such affidavit and the registry
receipt issued by the mailing office. The registry return card shall be filed
immediately upon its receipt by the sender, or in lieu thereof the unclaimed
letter together with the certified or sworn copy of the notice given by the
postmaster to the addressee.
Sec. 14. Notice of lis pendens.
In an action
affecting the title or the right of possession of real property, the plaintiff
and the defendant, when affirmative relief is claimed in his answer, may record
in the office of the registry of deeds of the province in which the property is
situated a notice of the pendency of the action. Said notice shall contain the
names of the parties and the object of the action or defense, and a description
of the property in that province affected thereby. Only from the time of filing
such notice for record shall a purchaser, or encumbrancer of the property
affected thereby, be deemed to have constructive notice of the pendency of the
action, and only of its pendency against the parties designated by their real
names.
The notice of lis pendens hereinabove
mentioned may be cancelled only upon order of the court, after proper showing
that the notice is for the purpose of molesting the adverse party, or that it
is not necessary to protect the rights of the party who caused it to be
recorded.
SUMMONS
Section 1. Clerk to issue summons.
Upon the
filing of the complaint and the payment of the requisite legal fees, the clerk
of court shall forthwith issue the corresponding summons to the defendants.
Sec. 2. Contents.
The summons
shall be directed to the defendant, signed by the clerk of court under seal,
and contain:
(a) the name
of the court and the names of the parties to the action;
(b) a direction that the defendant answer within the time fixed by these Rules;
(c) a notice that unless the defendant so answers, plaintiff will take judgment by default and may be granted the relief applied for.
(b) a direction that the defendant answer within the time fixed by these Rules;
(c) a notice that unless the defendant so answers, plaintiff will take judgment by default and may be granted the relief applied for.
A copy of the
complaint and order for appointment of guardian ad litem, if any, shall be
attached to the original and each copy of the summons.
Sec. 3. By whom served.
The summons
may be served by the sheriff, his deputy, or other proper court officer, or for
justifiable reasons by any suitable person authorized by the court issuing the
summons.
Sec. 4. Return.
When the
service has been completed, the server shall, within five (5) days therefrom,
serve a copy of the return, personally or by registered mail, to the
plaintiff's counsel, and shall return the summons to the clerk who issued it,
accompanied by proof of service.
Sec. 5. Issuance of alias summons.
If a summons
is returned without being served on any or all of the defendants, the server
shall also serve a copy of the return on the plaintiff's counsel, stating the
reasons for the failure of service, within five (5) days therefrom. In such a
case, or if the summons has been lost, the clerk, on demand of the plaintiff,
may issue an alias summons.
Sec. 6. Service in person on defendant.
Whenever
practicable, the summons shall be served by handing a copy thereof to the
defendant in person, or, if he refuses to receive and sign for it, by tendering
it to him.
Sec. 7. Substituted service.
If, for
justifiable causes, the defendant cannot be served within a reasonable time as
provided in the preceding section, service may be effected (a) by leaving
copies of the summons at the defendant's residence with some person of suitable
age and discretion then residing therein, or (b) by leaving the copies at
defendant's office or regular place of business with some competent person in
charge thereof.
Sec. 8. Service upon entity without
juridical personality.
When persons
associated in an entity without juridical personality are sued under the name
by which they are generally or commonly known, service may be effected upon all
the defendants by serving upon any one of them, or upon the person in charge of
the office or place of business maintained in such name. But such service shall
not bind individually any person whose connection with the entity has, upon due
notice, been severed before the action was brought.
Sec. 9. Service upon prisoners.
When the
defendant is a prisoner confined in a jail or institution, service shall be effected
upon him by the officer having the management of such jail or institution who
is deemed deputized as a special sheriff for said purpose.
Sec. 10. Service upon minors and
incompetents.
When the
defendant is a minor, insane or otherwise an incompetent, service shall be made
upon him personally and on his legal guardian if he has one, or if none, upon
his guardian ad litem whose appointment shall be applied for by the plaintiff.
In the case of a minor, service may also be made on his father or mother.
Sec. 11. Service upon domestic private
juridical entity.
When the
defendant is a corporation, partnership or association organized under the laws
of the Philippines with a juridical personality, service may be made on the
president, managing partner, general manager, corporate secretary, treasurer,
or in-house counsel.
Sec. 12. Service upon foreign private
juridical entity.
When the
defendant is a foreign private juridical entity which has transacted business
in the Philippines, service may be made on its resident agent designated in
accordance with law for that purpose, or, if there be no such agent, on the
government official designated by law to that effect, or on any of its officers
or agents within the Philippines.
Sec. 13. Service upon public
corporations.
When the
defendant is the Republic of the Philippines, service may be effected on the
Solicitor General; in case of a province, city or municipality, or like public
corporations, service may be effected on its executive head, or on such other
officer or officers as the law or the court may direct.
Sec. 14. Service upon defendant whose
identity or whereabouts are unknown.
In any action
where the defendant is designated as an unknown owner, or the like, or whenever
his whereabouts are unknown and cannot be ascertained by diligent inquiry,
service may, by leave of court, be effected upon him by publication in a
newspaper of general circulation and in such places and for such time as the
court may order.
Sec. 15. Extraterritorial service.
When the
defendant does not reside and is not found in the Philippines, and the action
affects the personal status of the plaintiff or relates to, or the subject of
which is, property within the Philippines, in which the defendant has or claims
a lien or interest, actual or contingent, or in which the relief demanded
consists, wholly or in part, in excluding the defendant from any interest
therein, or the property of the defendant has been attached within the
Philippines, service may, by leave of court, be effected out of the Philippines
by personal service as under section 6; or by publication in a newspaper of
general circulation in such places and for such time as the court may order, in
which case a copy of the summons and order of the court shall be sent by
registered mail to the last known address of the defendant, or in any other
manner the court may deem sufficient. Any order granting such leave shall
specify a reasonable time, which shall not be less than sixty (60) days after
notice, within which the defendant must answer.
Sec. 16. Residents temporarily out of the
When any
action is commenced against a defendant who ordinarily resides within the
Philippines, but who is temporarily out of it, service may, by leave of court,
be also effected out of the Philippines, as under the preceding section.
Sec. 17. Leave of court.
Any
application to the court under this Rule for leave to effect service in any
manner for which leave of court is necessary shall be made by motion in
writing, supported by affidavit of the plaintiff or some person on his behalf,
setting forth the grounds for the application.
Sec. 18. Proof of service.
The proof of
service of a summons shall be made in writing by the server and shall set forth
the manner, place, and date of service; shall specify any papers which have
been served with the process and the name of the person who received the same;
and shall be sworn to when made by a person other than a sheriff or his deputy.
Sec. 19. Proof of service by publication.
If the service
has been made by publication, service may be proved by the affidavit of the
printer, his foreman or principal clerk, or of the editor, business or
advertising manager, to which affidavit a copy of the publication shall be
attached, and by an affidavit showing the deposit of a copy of the summons and
order for publication in the post office, postage prepaid, directed to the
defendant by registered mail to his last known address.
Sec. 20. Voluntary appearance.
The
defendant's voluntary appearance in the action shall be equivalent to service
of summons. The inclusion in a motion to dismiss of other grounds aside from
lack of jurisdiction over the person of the defendant shall not be deemed a
voluntary appearance.
MOTIONS
Section 1. Motion defined.
A motion is an
application for relief other than by a pleading.
Sec. 2. Motions must be in writing.
All motions
shall be in writing except those made in open court or in the course of a
hearing or trial.
Sec. 3. Contents.
A motion shall
state the relief sought to be obtained and the grounds upon which it is based,
and if required by these Rules or necessary to prove facts alleged therein,
shall be accompanied by supporting affidavits and other papers.
Sec. 4. Hearing of motion.
Except for
motions which the court may act upon without prejudicing the rights of the
adverse party, every written motion shall be set for hearing by the applicant.
Every written motion required to be
heard and the notice of the hearing thereof shall be served in such a manner as
to ensure its receipt by the other party at least three (3) days before the
date of hearing, unless the court for good cause sets the hearing on shorter
notice.
Sec. 5. Notice of hearing.
The notice of
hearing shall be addressed to all parties concerned, and shall specify the time
and date of the hearing which must not be later than ten (10) days after the
filing of the motion.
Sec. 6. Proof of service necessary.
No written
motion set for hearing shall be acted upon by the court without proof of
service thereof.
Sec. 7. Motion day.
Except for
motions requiring immediate action, all motions shall be scheduled for hearing
on Friday afternoons, or if Friday is a non-working day, in the afternoon of
the next working day.
Sec. 8. Omnibus motion.
Subject to the
provisions of section 1 of Rule 9, a motion attacking a pleading, order,
judgment, or proceeding shall include all objections then available, and all
objections not so included shall be deemed waived.
Sec. 9. Motion for leave.
A motion for
leave to file a pleading or motion shall be accompanied by the pleading or
motion sought to be admitted.
Sec. 10. Form.
The Rules
applicable to pleadings shall apply to written motions so far as concerns
caption, designation, signature, and other matters of form.
MOTION TO
DISMISS
Section 1. Grounds.
Within the
time for but before filing the answer to the complaint or pleading asserting a
claim, a motion to dismiss may be made on any of the following grounds:
(a) That the
court has no jurisdiction over the person of the defending party;
(b) That the court has no jurisdiction
over the subject matter of the claim;
(c) That venue is improperly laid;
(d) That the plaintiff has no legal
capacity to sue;
(e) That there is another action
pending between the same parties for the same cause;
(f) That the cause of action is barred
by a prior judgment or by the statute of limitations;
(g) That the pleading asserting the
claim states no cause of action;
(h) That the claim or demand set forth
in the plaintiff's pleading has been paid, waived, abandoned, or otherwise
extinguished;
(i) That the claim on which the action
is founded is unenforceable under the provisions of the statute of frauds; and
(j) That a condition precedent for
filing the claim has not been complied with.
Sec. 2. Hearing of motion.
At the hearing
of the motion, the parties shall submit their arguments on the questions of law
and their evidence on the questions of fact involved except those not available
at that time. Should the case go to trial, the evidence presented during the
hearing shall automatically be part of the evidence of the party presenting the
same.
Sec. 3. Resolution of motion.
After the
hearing, the court may dismiss the action or claim, deny the motion, or order
the amendment of the pleading.
The court shall not defer the
resolution of the motion for the reason that the ground relied upon is not
indubitable.
In every case, the resolution shall
state clearly and distinctly the reasons therefor.
Sec. 4. Time to plead.
If the motion
is denied, the movant shall file his answer within the balance of the period
prescribed by Rule 11 to which he was entitled at the time of serving his
motion, but not less than five (5) days in any event, computed from his receipt
of the notice of the denial. If the pleading is ordered to be amended, he shall
file his answer within the period prescribed by Rule 11 counted from service of
the amended pleading, unless the court provides a longer period.
Sec. 5. Effect of dismissal.
Subject to the
right of appeal, an order granting a motion to dismiss based on paragraphs (f),
(h) and (i) of section 1 hereof shall bar the refiling of the same action or
claim.
Sec. 6. Pleading grounds as affirmative defenses.
If no motion
to dismiss has been filed, any of the grounds for dismissal provided for in
this Rule may be pleaded as an affirmative defense in the answer and, in the
discretion of the court, a preliminary hearing may be had thereon as if a
motion to dismiss had been filed.
The dismissal of the complaint under
this section shall be without prejudice to the prosecution in the same or
separate action of a counterclaim pleaded in the answer.
DISMISSAL OF
ACTIONS
Section 1. Dismissal upon notice by
plaintiff.
A complaint
may be dismissed by the plaintiff by filing a notice of dismissal at any time
before service of the answer or of a motion for summary judgment. Upon such
notice being filed, the court shall issue an order confirming the dismissal.
Unless otherwise stated in the notice, the dismissal is without prejudice,
except that a notice operates as an adjudication upon the merits when filed by
a plaintiff who has once dismissed in a competent court an action based on or
including the same claim.
Sec. 2. Dismissal upon motion of plaintiff.
Except as
provided in the preceding section, a complaint shall not be dismissed at the
plaintiff's instance save upon approval of the court and upon such terms and
conditions as the court deems proper. If a counterclaim has been pleaded by a
defendant prior to the service upon him of the plaintiff's motion for
dismissal, the dismissal shall be limited to the complaint. The dismissal shall
be without prejudice to the right of the defendant to prosecute his
counterclaim in a separate action unless within fifteen (15) days from notice
of the motion he manifests his preference to have his counterclaim resolved in
the same action. Unless otherwise specified in the order, a dismissal under
this paragraph shall be without prejudice. A class suit shall not be dismissed
or compromised without the approval of the court.
Sec. 3. Dismissal due to fault of plaintiff.
If, for no
justifiable cause, the plaintiff fails to appear on the date of the
presentation of his evidence in chief on the complaint, or to prosecute his
action for an unreasonable length of time, or to comply with these Rules or any
order of the court, the complaint may be dismissed upon motion of the defendant
or upon the court's own motion, without prejudice to the right of the defendant
to prosecute his counterclaim in the same or in a separate action. This
dismissal shall have the effect of an adjudication upon the merits, unless
otherwise declared by the court.
Sec. 4. Dismissal of counterclaim, cross-claim, or third-party complaint.
The provisions
of this Rule shall apply to the dismissal of any counterclaim, cross-claim, or
third-party complaint. A voluntary dismissal by the claimant by notice as in
section 1 of this Rule, shall be made before a responsive pleading or a motion
for summary judgment is served or, if there is none, before the introduction of
evidence at the trial or hearing.
PRE-TRIAL
Section 1. When conducted.
After the last
pleading has been served and filed, it shall be the duty of the plaintiff to
promptly move ex parte that the case be set for pre-trial.
Sec. 2. Nature and purpose.
The pre-trial
is mandatory. The court shall consider:
(a) The
possibility of an amicable settlement or of a submission to alternative modes
of dispute resolution;
(b) The simplification of the issues;
(c) The necessity or desirability of
amendments to the pleadings;
(d) The possibility of obtaining
stipulations or admissions of facts and of documents to avoid unnecessary
proof;
(e) The limitation of the number of
witnesses;
(f) The advisability of a preliminary
reference of issues to a commissioner;
(g) The propriety of rendering
judgment on the pleadings, or summary judgment, or of dismissing the action
should a valid ground therefor be found to exist;
(h) The advisability or necessity of
suspending the proceedings; and
(i) Such other matters as may aid in
the prompt disposition of the action.
Sec. 3. Notice of pre-trial.
The notice of
pre-trial shall be served on counsel, or on the party who has no counsel. The
counsel served with such notice is charged with the duty of notifying the party
represented by him.
Sec. 4. Appearance of parties.
It shall be
the duty of the parties and their counsel to appear at the pre-trial. The
non-appearance of a party may be excused only if a valid cause is shown
therefor or if a representative shall appear in his behalf fully authorized in
writing to enter into an amicable settlement, to submit to alternative modes of
dispute resolution, and to enter into stipulations or admissions of facts and
of documents.
Sec. 5. Effect of failure to appear.
The failure of
the plaintiff to appear when so required pursuant to the next preceding section
shall be cause for dismissal of the action. The dismissal shall be with
prejudice, unless otherwise ordered by the court. A similar failure on the part
of the defendant shall be cause to allow the plaintiff to present his evidence
ex parte and the court to render judgment on the basis thereof.
Sec. 6. Pre-trial brief.
The parties
shall file with the court and serve on the adverse party, in such manner as
shall ensure their receipt thereof at least three (3) days before the date of
the pre-trial, their respective pre-trial briefs which shall contain, among
others:
(a) A
statement of their willingness to enter into amicable settlement or alternative
modes of dispute resolution, indicating the desired terms thereof;
(b) A summary of admitted facts and
proposed stipulation of facts;
(c) The issues to be tried or
resolved;
(d) The documents or exhibits to be
presented, stating the purpose thereof;
(e) A manifestation of their having
availed or their intention to avail themselves of discovery procedures or
referral to commissioners; and
(f) The number and names of the
witnesses, and the substance of their respective testimonies.
Failure to file
the pre-trial brief shall have the same effect as failure to appear at the
pre-trial.
Sec. 7. Record of pre-trial.
The
proceedings in the pre-trial shall be recorded. Upon the termination thereof,
the court shall issue an order which shall recite in detail the matters taken
up in the conference, the action taken thereon, the amendments allowed to the
pleadings, and the agreements or admissions made by the parties as to any of
the matters considered. Should the action proceed to trial, the order shall
explicitly define and limit the issues to be tried. The contents of the order
shall control the subsequent course of the action, unless modified before trial
to prevent manifest injustice.
INTERVENTION
Section 1. Who may intervene.
A person who
has a legal interest in the matter in litigation, or in the success of either
of the parties, or an interest against both, or is so situated as to be
adversely affected by a distribution or other disposition of property in the
custody of the court or of an officer thereof may, with leave of court, be
allowed to intervene in the action. The court shall consider whether or not the
intervention will unduly delay or prejudice the adjudication of the rights of
the original parties, and whether or not the intervenor's rights may be fully
protected in a separate proceeding.
Sec. 2. Time to intervene.
The motion to
intervene may be filed at any time before rendition of judgment by the trial
court. A copy of the pleading-in-intervention shall be attached to the motion
and served on the original parties.
Sec. 3. Pleadings-in-intervention.
The intervenor
shall file a complaint-in-intervention if he asserts a claim against either or
all of the original parties, or an answer-in-intervention if he unites with the
defending party in resisting a claim against the latter.
Sec. 4. Answer to complaint-in-intervention.
The answer to
the complaint-in -intervention shall be filed within fifteen (15) days from
notice of the order admitting the same, unless a different period is fixed by
the court.
CALENDAR OF
CASES
Section 1. Calendar of cases.
The clerk of
court, under the direct supervision of the judge, shall keep a calendar of
cases for pre-trial, for trial, those whose trials were adjourned or postponed,
and those with motions to set for hearing. Preference shall be given to habeas
corpus cases, election cases, special civil actions, and those so required by
law.
Sec. 2. Assignment of cases.
The assignment
of cases to the different branches of a court shall be done exclusively by
raffle. The assignment shall be done in open session of which adequate notice
shall be given so as to afford interested parties the opportunity to be
present.
SUBPOENA
Section 1. Subpoena and subpoena duces
tecum.
Subpoena is a
process directed to a person requiring him to attend and to testify at the
hearing or the trial of an action, or at any investigation conducted by
competent authority, or for the taking of his deposition. It may also require
him to bring with him any books, documents, or other things under his control,
in which case it is called a subpoena duces tecum.
Sec. 2. By whom issued.
The subpoena
may be issued by:
a) the court
before whom the witness is required to attend;
b) the court of the place where the
deposition is to be taken;
c) the officer or body authorized by
law to do so in connection with investigations conducted by said officer or
body; or
d) any Justice of the Supreme Court or
of the Court of Appeals in any case or investigation pending within the Philippines
When
application for a subpoena to a prisoner is made, the judge or officer shall
examine and study carefully such application to determine whether the same is
made for a valid purpose.
No prisoner sentenced to death,
reclusion perpetua or life imprisonment and who is confined in any penal
institution shall be brought outside the said penal institution for appearance
or attendance in any court unless authorized by the Supreme Court.
Sec. 3. Form and contents.
A subpoena
shall state the name of the court and the title of the action or investigation,
shall be directed to the person whose attendance is required, and in the case
of a subpoena duces tecum, it shall also contain a reasonable description of
the books, documents or things demanded which must appear to the court prima
facie relevant.
Sec. 4. Quashing a subpoena.
The court may
quash a subpoena duces tecum upon motion promptly made and, in any event, at or
before the time specified therein if it is unreasonable and oppressive, or the
relevancy of the books, documents or things does not appear, or if the person
in whose behalf the subpoena is issued fails to advance the reasonable cost of
the production thereof.
The court may quash a subpoena ad
testificandum on the ground that the witness is not bound thereby. In either
case, the subpoena may be quashed on the ground that the witness fees and
kilometrage allowed by these Rules were not tendered when the subpoena was
served.
Sec. 5. Subpoena for depositions.
Proof of
service of a notice to take a deposition, as provided in sections 15 and 25 of
Rule 23, shall constitute sufficient authorization for the issuance of
subpoenas for the persons named in said notice by the clerk of the court of the
place in which the deposition is to be taken. The clerk shall not, however,
issue a subpoena duces tecum to any such person without an order of the court.
Sec. 6. Service.
Service of a
subpoena shall be made in the same manner as personal or substituted service of
summons. The original shall be exhibited and a copy thereof delivered to the
person on whom it is served, tendering to him the fees for one day’s attendance
and the kilometrage allowed by these Rules, except that, when a subpoena is
issued by or on behalf of the Republic of the Philippines or an officer or
agency thereof, the tender need not be made. The service must be made so as to
allow the witness a reasonable time for preparation and travel to the place of
attendance. If the subpoena is duces tecum, the reasonable cost of producing
the books, documents or things demanded shall also be tendered.
Sec. 7. Personal appearance in court.
A person
present in court before a judicial officer may be required to testify as if he
were in attendance upon a subpoena issued by such court or officer.
Sec. 8. Compelling attendance.
In case of
failure of a witness to attend, the court or judge issuing the subpoena, upon
proof of the service thereof and of the failure of the witness, may issue a
warrant to the sheriff of the province, or his deputy, to arrest the witness
and bring him before the court or officer where his attendance is required, and
the cost of such warrant and seizure of such witness shall be paid by the
witness if the court issuing it shall determine that his failure to answer the
subpoena was willful and without just excuse.
Sec. 9. Contempt.
Failure by any
person without adequate cause to obey a subpoena served upon him shall be
deemed a contempt of the court from which the subpoena is issued. If the
subpoena was not issued by a court, the disobedience thereto shall be punished
in accordance with the applicable law or Rule.
Sec. 10. Exceptions.
The provisions
of sections 8 and 9 of this Rule shall not apply to a witness who resides more
than one hundred (100) kilometers from his residence to the place where he is
to testify by the ordinary course of travel, or to a detention prisoner if no
permission of the court in which his case is pending was obtained.
COMPUTATION OF
TIME
Section 1. How to compute time.
In computing
any period of time prescribed or allowed by these Rules, or by order of the
court, or by any applicable statute, the day of the act or event from which the
designated period of time begins to run is to be excluded and the date of
performance included. If the last day of the period, as thus computed, falls on
a Saturday, a Sunday, or a legal holiday in the place where the court sits, the
time shall not run until the next working day.
Sec. 2. Effect of interruption.
Should an act
be done which effectively interrupts the running of the period, the allowable
period after such interruption shall start to run on the day after notice of
the cessation of the cause thereof.
The day of the act that caused the
interruption shall be excluded in the computation of the period.
