CIVIL PROCEDURE CASE DIGEST RULE 7-13

RULE 7: COUNTERCLAIM
SUBJECT: If a counterclaim is filed in the MTC in excess of its
jurisdictional amount, the excess is considered waived
GLICERIO AGUSTIN (Deceased) as Administrator of the
Intestate Estate of Susana Agustin vs. LAUREANO BACALAN
and the PROVINCIAL SHERIFF OF CEBU
Bacalan is a lessee of a one-door ground floor space in a building
owned by the late Susana Agustin. Due to nonpayment of rentals
despite repeated demands an action to eject him was filed.

The defendant filed an appeal with Branch Ill of the Court of First
Instance of Cebu.
The Court of First Instance rendered a decision. Judgment is hereby
required in favor of the defendant.

1. Ordering the plaintiff to pay

a) P10,000.00 as moral damages;
b) P5,000.00 as exemplary damages;

A complaint for ejectment with damages filed by plaintiff-appellant

Agustin, as adiministrator of the Intestate Estate of Susana Agustin,
against defendant-appellee Bacalan, before the City Court of Cebu.

c) P1,000.00 as attorney's fees; and

Plaintiff-appellant prayed that Bacalan be ordered to immediately

vacate the place in question, to pay plaintiff-appellant the sum of
P2,300.00 representing arrearages in rentals plus the corresponding
rentals until he actually vacates the place, attorney's fees, expenses,
and costs.

2. With costs against plaintiff

Bacalans answer included a counter-claim alleging that the present

action was "clearly unfounded and devoid of merits, as it is tainted
with malice and bad faith. "That by virtue malicious filing of this
action by the plaintiff against the defendant, the latter suffered, and
will continue to suffer, actual and moral damages in the amount of no
less than P50,000.00; P10,000.00 in concept of exemplary damages.
In addition, defendant has been compelled to retain the services of
undersigned counsel to resist plaintiffs' reckless, malicious and
frivolous claim and to protect and enforce his rights for which he
obligated himself to pay the further sum of P3,500.00 as attorney's
fees."
City Court of Cebu rendered judgment dismissing the counterclaim
and ordering the defendant to vacate the premises in question and to
pay the plaintiff the sum of P3,887.10 as unpaid back rentals and the
sum of P150.00 as attorney's fees.

The decision lapsed into finality and became executory. A writ of

execution was issued by virtue of which a notice to sell at public
auction real properties belonging to the estate of Susana Agustin
was issued by the Deputy Sheriff to satisfy judgment.
Plaintiff's counsel filed a motion for reconsideration. The motion was
denied.
With the aid of new counsel, the Agustin filed a complaint with
Branch V, Court of First Instance of Cebu, against the defendant and
the Deputy Sheriff of Cebu for the declaration of the nullity of the
above-cited decision of Branch III, Court of First Instance of Cebu in
the ejectment case on the ground that the exercise of its appellate
jurisdiction was null and void from the beginning for the following
reasons:
(a) It grants relief in the total sum of P16,000.00 (exclusive of costs)
distributed thus:
P10,000.00 as moral damages
P5,000.00 as exemplary damages

CIVIL PROCEDURE CASE DIGEST RULE 7-13

P1,000.00 as attorney's fees

CALO V. AJAX INTERNATIONAL 22 SCRA 996 (1968)

which is clearly beyond the jurisdiction of the City Court of Cebu.

A motion to dismiss was filed by the defendant on the grounds that
the plaintiff has no cause of action. The court sustained the
defendant and ruled: This Court believes that the present complaint
fails to allege a valid cause of action.
Agustin's motion for reconsideration was denied, prompting him to
file an appeal before the Court of Appeals.
Plaintiff-appellant assails the money judgment handed down by the
court which granted damages to the defendant-appellee. By reason
thereof, he seeks the declaration of the nullity of the entire judgment.
Whether or not the Court of First Instance may, in an appeal, award
the defendant-appellee's counterclaim in an amount exceeding or
beyond the jurisdiction of the court of origin?
SC = No. The Court of First Instance, in the case at bar, having
awarded judgment in favor of the defendant-appellee in excess of its
appellate jurisdiction to the extent of P6,000.00 over the maximum
allowable award of P10,000.00, the excess is null and void and of no
effect. Such being the case, an action to declare the nullity of the
award as brought by the plaintiff-appellant before the Court of First
Instance of Cebu, Branch V is a proper remedy.
The amount of judgment obtained by the defendant-appellee on
appeal, cannot exceed the jurisdiction of the court in which the action
began. Since the trial court did not acquire jurisdiction over the
defendant's counterclaim in excess of the jurisdictional amount, the
appellate court, likewise, acquired no jurisdiction over the same.

FACTS: Plaintiff Calo ordered from defendant Ajax International

1,200 ft of John Shaw wire rope evidenced by Charge Order no
37071 for P3,420
1. Plaintiff alleged that when the said rope was delivered, it was
300 ft short. Plaintiff then wrote a letter asking for complete
delivery or account adjustment of the alleged undelivered
wire rope
2. Incidentally, Adolfo Benavides acquired the outstanding
credit of Calo from Ajax. Benavides filed a complaint against
Calo before MTC Manila. A judgment by default was entered
and a writ of execution was issued against Calo. The case
was later remanded for further proceedings
3. In turn, Calo filed before CFI Agusan a complaint against
Ajax asking for either complete delivery of charge order no
37071 of that she be relieved from paying P855
4. Instead of filing an answer, Ajax moved for the dismissal of
the case on the ground that the subject matter involved was
related to a pending case filed in Manila by Benavides. The
trial court sustained the motion and dismissed the case.
Plaintiff filed MR (denied).
5. The dismissal of the case in CFI Agusan was premised
on the theory that the petitioners claim is a compulsory
counterclaim to the case filed before MTC Manila
ISSUE: WON the case filed in CFI Agusan is a compulsory counterclaim

HELD: No, the plaintiffs claim is not a compulsory counterclaim

for the simple reason that the amount thereof exceeds the
jurisdiction of the municipal trial court. The rule that a
compulsory counterclaim not set up is barred, when applied to
the municipal court, presupposes that the amount is within the
said courts jurisdiction. Otherwise, it would result to an absurd

CIVIL PROCEDURE CASE DIGEST RULE 7-13

situation where a claim must be filed within the MTC which is
prohibited from taking cognizance of, being beyond its jurisdiction.

Besides, the reason underlying the rule, which is to settle all related
controversies in one sitting only, is not obtained. Even if the
counterclaim in excess of the amount cognizable by the inferior court
is set up, the defendant cannot obtain positive relief. The rules allow
this only for the defendant to prevent plaintiff from recovering from
him. This means that should the court find both plaintiffs complaint
and the defendants counterclaim (for an amount exceeding said
courts jurisdiction) meritorious, it will simply dismiss the complaint on
the ground that the defendant has a bigger credit. Since the
defendant still has to institute a separate action for the remaining
balance of his counterclaim, the previous litigation did not really
settle all related controversies.
Plaintiff Calo's claim of P12,000.00 not being a compulsory
counterclaim in Civil Case No. VI-93062, it need not be filed there.
The pendency then of said civil case could not be pleaded in
abatement of Civil Case No. 860. Consequently, the lower court
erred in dismissing plaintiff's complaint.

DISPOSITIVE: The order of dismissal is reversed and the case is

remanded for further proceedings
Gojo vs Goyala

Facts: Goyala, with his deceased wife, sold a parcel of land to Gojo
with a right to repurchase the same in one year. Upon the lapse of
the period without exercising the right to repurchase, Gojo filed for
consolidation of ownership. In his opposition, Goyala alleged that the
real intention of the contract is not a pacto de retro sale; it a cash
loan payable in one year without interest, wherein the parcel of land
was a mortgage to guarantee payment thereof. He also alleged that

he and his wife tendered payment but it was refused by Gojo. The
same allegations were reiterated by Goyala in a counterclaim. Upon
Goyala's manifestation that his wife, who was named defendant, is
now dead, the court ordered an amendment to the complaint for the
substitution of her successors in interest. After 43 days, Gojo failed
to file an amended complaint. Goyala filed a motion to dismiss based
on this fact. The court dismissed the case. A motion to declare Gojo
in default was filed with regard to the counterclaim contained in the
answer or opposition to the dismissed complaint. The court declared
Gojo in default. Goyala was directed to submit evidence and the
clerk of court to receive the same. Judgment was rendered in favor
of Goyala. On appeal to the CA, the CA certified the same to the SC
as it involves purely questions of law. Gojo argues that the
declaration of default is i proper because the counterclaim was
compulsory and as such does not call for an independent answer
because the complaint already denies the material allegations
therein and the dismissal of the complaint carries with it the dismissal
of the counterclaim.
Issue: WON Gojo was in default in respect to the counterclaim?
Held: No. The rule is that a plaintiff who fails or does not answer a
compulsory counterclaim may not be declared in default because the
issues raised in the counterclaim are deemed automatically joined by
the allegations of the complaint. The counterclaim in this case is
compulsory as it is necessarily connected to the transaction which is
the subject matter of the complaint. Hence, Gojo may not be
declared in default.
On the dismissal of the complaint, while Sec. 3 of Rule 17 provides
for dismissal when plaintiff fails to comply with a court order, the rule
does not apply when the order is, in the first place, void. The order
directed the amended of the complaint due to the death of a party. It
is void because as held in Casenas vs Rosales, the proper course of
action by the court is not amendment but to order the appearance of
the legal representatives of the deceased pursuant to Sec. 17, Rule
3. And as held in Barrameda vs Barbara, an order to amend prior to
the substitution of the parties is void.

CIVIL PROCEDURE CASE DIGEST RULE 7-13

Also, dismissal of a complaint when a compulsory counterclaim has
been pleaded is not proper. Sec. 2, Rule 17 provides that if a
counterclaim is pleaded prior to the service of plaintiff's motion to
dismiss, the action shall not be dismissed against the defendant's
objection unless the counterclaim can remain pending for
independent adjudication. The SC held on this issue that the same
applies when it is the defendant that moves for dismissal since the
provision is meant to avoid multiplicity of suits.

Held: Yes. Apart from declaring that the motion for extension should
have been granted because of the meritorious ground that there was
a typhoon and that it is a motion that may be heard ex parte, the
Court held that the issues raised in the counterclaim were
inseperable from the ones raised in the complaint. The counterclaim
cannot be passed upon without deciding the truth of the allegations
of the complaint. Hence, an answer to the counterclaim was not
necessary.

Ballecer vs Bernardo

RULE 9
AMENDED AND SUPPLEMENTAL PLEADINGS

Facts: Petitioners filed for damages against respondent for the

destruction of a portion of the former's wall and for recovery of
possession which is allegedly encroached upon by Bernardo.
Bernardo filed an answer stating that the destruction occured within
his property and set up a counterclaim wherein he alleged that it was
petitioners who had encroached on his property and that the
complaint is premature, uncalled for and capricious. Petitioners'
motion for extension of time was denied, hence they were declared
in default as to the counterclaim. Bernardo, upon order, presented
evidence. On the counterclaim, the court ruled in favor of Bernardo.
Petitioners' motion for reconsideration was denied. They also filed a
petition for relief from judgment, which was denied. A motion for
reconsideration by petitioners was granted. But the court denied the
same upon motion for reconsideration by Bernardo. Petitioners
rendered a notice of appeal. Their motion for extension was denied.
A writ of execution was issued but it was stayed pending trial on the
complaint. On Bernardo's motion, the order staying the writ was set
aside. A reconsideration on this order was denied. Hence, this
petition.
Issue: WON the declaration of default was improper?

214 SCRA 355

[G.R. No. 82630. September 30, 1992.]
MARIA GULANG, Petitioner, v. GENOVEVA NADAYAG, FELIX
NADAYAG, ANTIPAS NADAYAG, ANDRES NADAYAG, HILARIO
NADAYAG
and
HONORABLE
COURT
OF APPEALS,
Respondents.

1.
REMEDIAL LAW; CIVIL PROCEDURE; AMENDMENT OF
PLEADINGS; WHEN AVAILABLE; RULE. In the instant case, the motion
to amend was filed long after the pre-trial was terminated and the case
placed on the trial calendar. If Lasmarias failed to take any positive action to
amend his answer before pre-trial, he should have raised during the pre-trial
itself, which was conducted much later, his other possible defenses and,
accordingly, amend his answer for that purpose. One of the avowed
purposes for the holding of a pre-trial as provided under Section 1, Rule 20
of the Rules of Court, is precisely to consider "the necessity or desirability of
amendments to the pleadings." The foregoing rules are not, however, ironclad. Under Section 3 of Rule 10, substantial amendments may be made
even after the case has been set for hearing provided prior leave of court is
obtained. Such leave may be refused if the motion requesting for the same
would delay the action or the cause of action or defenses would be
substantially altered by the proposed amendment.

CIVIL PROCEDURE CASE DIGEST RULE 7-13

2.
ID.; ID.; EFFECT OF PLEADINGS; AS A RULE, DEFENSES AND
OBJECTIONS NOT PLEADED ARE DEEMED WAIVE; LACK OF CAUSE
OF ACTION AS AN EXCEPTION; RULE. As could be gleaned from
Section 2 of Rule 9, two (2) defenses are not deemed waived by the failure
to raise them in a motion to dismiss or in the answer, to wit: (a) lack of cause
of action and lack of jurisdiction on the part of the Court. Lack of cause of
action may thus be raised in a motion to dismiss after the answer has been
filed, by a motion for judgment on the pleadings, or at the trial on the merits.

3.
ID.; ID.; ID.; ID.; LACK OF JURISDICTION AS AN EXCEPTION;
RULE. As to jurisdiction, while it is true that jurisdiction over the subject
matter of a case may be raised at any stage of the proceedings as the same
is conferred by law, it is nevertheless settled that a party may be barred from
raising it on the ground of laches or estoppel.

4.
ID.; ID.; ID.; ID.; DEFENSE OF PRESCRIPTION; RULE. There
is also authority to the effect that the defense of prescription is not deemed
waived, even if not pleaded in a motion to dismiss or in the answer, if
plaintiffs allegation in the complaint or the evidence he presents shows
clearly that the action has prescribed.

DECISION
DAVIDE, JR., J.:

This is a petition for review on certiorari under Rule 45 of the Rules

of Court to annul and set aside the 22 September 1987 decision 1 of
respondent Court of Appeals in C.A.-G.R. CV No. 07064 affirming in
toto the ruling of Branch IV of the then Court of First Instance (now
Regional Trial Court) of Lanao del Norte, at Iligan City, in Civil Case
No. 1076; the trial court found the petitioner to have encroached
upon the property of the private respondents to the extent of thirtytwo (32) square meters. The petitioner was therefore ordered to (a)
vacate said portion, (b) deliver possession thereof to the private
respondents and (c) pay the sum of P2,000.00 as attorneys fees.

The factual and procedural antecedents are summarized by the

respondent Court as follows:jgc:chanrobles.com.ph
"On October 24, 1978, Genoveva Nadayag, Felix Nadayag, Antipas
Nadayag, Andres Nadayag, Pedro Nadayag and Hilario Nadayag
filed with the then Court of First Instance of Lanao del Norte at Iligan
City, Branch II, a complaint against Maria Gulang and/or Pedro
Lasmarias. It is alleged in the complaint that plaintiffs are co-owners
of a parcel of land located in Port Area, Iligan City, 62 square meters
in area, covered by Tax Declaration No. 76-18851 and TCT No. T15334; that defendant Maria Gulang is the registered owner of a
parcel of land, also located at Port Area, Iligan City, with an area of
40 square meters, covered by Tax Declaration No. 76-281591 and
TCT No. T-12999; that before Maria Gulang acquired the
abovementioned lot, she rented a portion of the same, 32 square
meters in area, together with the improvements thereon from
defendant Pedro Lasmarias; that sometime in 1964, Pedro
Lasmarias purchased from the plaintiffs predecessor-in-interest a
parcel of land, 38.5 square meters in area, adjacent to the
aforementioned 62 square meters lot of the plaintiffs; that plaintiffs
had complained against Maria Gulangs occupancy of the above-said
32 square-meters-area in plaintiffs 62 square-meters-parcel of land,
the rentals on which (the 32 square meters-portion and the house
erected thereon) Maria Gulang had been paying to Pedro Lasmarias
instead of to the plaintiffs; and that Pedro Lasmarias has been
claiming that the 32 square-meters-portion is part and parcel of his
land which he purchased from plaintiffs predecessor-in-interest.
Plaintiffs pray that Maria Gulang be ordered to vacate the 32 squaremeters-portion of plaintiffs land restore possession and/or ownership
thereof to plaintiffs; and that defendants be ordered to pay back
rentals on the said portion for a period of twelve (12) years from
1966 at the rate of P100.00 per month; moral and exemplary
damages, attorneys fees and costs of litigation.
In their Answer, filed on November 6, 1978, defendants deny the
claim of the plaintiffs and by way of affirmative and special defenses
alleged that the defendants are the true, legal and lawful owner (sic)
and in actual possession and occupation of the land in question, as

CIVIL PROCEDURE CASE DIGEST RULE 7-13

evidenced by the original certificate of title in the name of defendant
Pedro Lasmarias and the transfer certificate of title in the name of
defendant Maria Gulang, describing the property involved as Forty
(40) meters, more or less. By way of counterclaim, defendants seek
moral damages and exemplary damages and attorneys fees.
The pre-trial was then set and held, during which the parties came to
an agreement to have the two lots in question relocated by surveyors
who shall jointly conduct the relocation survey. However, the survey
was not conducted because of the failure of the two surveyors to
jointly make the survey. Instead, a separate survey was made by a
surveyor of the Bureau of Lands, Sr. Geodetic Engineer Norberto
Carreon, Land District No. XXI-2, Iligan City, who conducted the
survey in September 1979, in the presence of both parties who
indicated to the said surveyor the extents of their respective
occupancies on the lands being surveyed. Said surveyors report
contains the following conclusion:chanrob1es virtual 1aw library
On the actual observations based upon my relocation survey, Maria
Gulang, the herein defendant is occupying a portion of Lot No. 6094,
Cad. 292, covered by TCT No. T-15314 issued to Genoviva (sic)
Nadayag as indicated in the hereto (sic) attached sketch plan
shaded in black with an area of 30 square meters.
But defendants counsel made an open court manifestation that his
clients will not abide with (sic) the abovesaid survey and report.
On February 2, 1981, defendant Pedro Lasmarias filed a motion to
admit his amended answer, attaching thereto the Amended Answer
in which the defenses of want of cause of action, prescription,
estoppel, laches and fraud were introduced. And on February 6,
1981, defendant Maria Gulang filed a similar motion to admit her
amended answer, likewise attaching to the motion her Amended
Answer in which the same defenses as those introduced in
defendant Lasmarias Amended Answer, abovementioned, were
similarly raised. These motions were denied by the court in its Order
of September 27, 1981. Again in a resolution dated June 1, 1983, the
trial court denied the motion for reconsideration of the

abovementioned order denying defendants motion for the admission

of their amended answers.
After trial, the lower court found that there is undoubtedly an area of
32 sq. meters in the land of the plaintiffs encroached upon by the
defendant Maria Gulang, [and] this should be returned to the
plaintiffs; and accordingly rendered judgment ordering the defendant
Maria Gulang to vacate the said area and to deliver possession
thereof to the plaintiffs, and to pay the sum of P2,000.00 as
attorneys fees; and dismissing all other claims and counterclaims for
lack of merit and insufficiency of evidence.
Defendant Maria Gulang elevated the abovesaid decision to the then
Intermediate Appellate Court on appeal. And plaintiffs likewise
appealed that portion of the decision concerning the none (sic)
award of rentals and reasonable use of the property only. Plaintiffs
appeal was however dismissed by the then Intermediate Appellate
Court for failure to file appellants brief."
In her Brief filed with the respondent Court, petitioner submitted the
following assignment of errors:jgc:chanrobles.com.ph

"1.
The honorable court erred in denying defendant Pedro Lasmarias motion to
amend answer as predecessor in interest of defendant-appellant Maria Gulang to
plaintiffs complaint;
2.
The lower court erred in not holding that plaintiffs action has long
prescribed;
3.
The lower court erred in not holding that plaintiffs are estopped from
denying the existence of the contract of purchase of the land and house in question by
defendant Pedro Lasmarias which land and house was (sic) subsequently sold to
defendant Maria Gulang (Exh. "1", Lasmarias and Exh. "2", Gulang);
4.
The lower court erred in not holding that plaintiffs (sic) complaint should be
dismissed on grounds (sic) of laches;
5.
The lower court erred in holding that defendant Maria Gulang encroached
on 32 square meters of the land of the plaintiffs and ordering her to vacate the same
and in not holding that the title of the plaintiffs over the land in question was acquired
thru fraudulent means; and

CIVIL PROCEDURE CASE DIGEST RULE 7-13

6.
The lower court erred in ordering defendant Maria Gulang to pay attorneys
fee (sic) of P2,000.00." 3

In disposing of these assigned errors, respondent Court ruled that

the trial court correctly denied defendant Lasmarias motion to
amend the answer pursuant to Section 3, Rule 10 of the Rules of
Court considering that the same was filed after the case had been
set for hearing and that it substantially altered his defense by adding
the grounds of prescription, estoppel, laches and fraud; accordingly,
since the second to the fifth assigned errors raise precisely these
defenses in issue, they are thus deemed raised for the first time in
the appeal. Pursuant therefore to Section 2, Rule 9 of the Rules of
Court, these defenses are deemed waived.
The appellate court further declared that the main issue in the case
"is whether or not defendants had encroached on the land of the
plaintiffs." It then concluded that "the trial court made a proper
assessment" of the evidence in relation to the pertinent law.
Petitioner reiterates the above assignment of errors in this petition. 4
In the Resolution of 8 November 1989, this Court gave due course to
the petition 5 and required the parties to submit their respective
Memoranda.
Deliberating on the pleadings of the parties, We find no merit in this
petition.
In addition to the ruling of the respondent Court on the first assigned
error, it is worth noting that petitioner and defendant Pedro
Lasmarias originally filed, on 6 November 1978, a common Answer
through Atty. Luis Buendia. 6 On 2 February 1981, through a new
counsel, Atty. Moises Dalisay, Jr., defendant Lasmarias filed for
himself a motion to amend the answer; the proposed Amended
Answer 7 was attached thereto. It is thus clear that petitioner neither
joined her co-defendant nor was included as a party in the motion to
amend the answer and the amended answer itself. Neither does she
claim in any of her pleadings that the motion and amended answer

were further amended to include her as a party thereto or that she

adopted the same as her own. Petitioner, therefore, cannot benefit
from Lasmarias action, which ultimately failed, or revive the same
after the latter unilaterally and voluntarily abandoned it by failing to
appeal from the decision. That petitioner is a successor-in-interest of
Lasmarias with respect to the property acquired by the latter from
private respondent Genoveva Nadayag and therefore, was indirectly
benefited by the filing of both the motion and the proposed amended
complaint, does not improve her position because even if it were so,
such defenses were deemed waived by Lasmarias failure to allege
the same in the Answer and exercise his right under Section 2, Rule
10 of the Rules of Court. Section 5, Rule 16; Section 2, Rule 9; and
Section 2, Rules 10 of the Rules of Court easily come into focus.

Section 5 of Rule 16 provides:

"SECTION 5. Pleading grounds as affirmative defenses. Any of
the grounds for dismissal provided for in this rule, except improper
venue, may be pleaded as an affirmative defense, and a preliminary
hearing may be had thereon as if a motion to dismiss had been
filed."cralaw virtua1aw library

Section 2 of Rule 9
"SECTION 2. Defenses and objections not pleaded deemed
waived. Defenses and objections not pleaded either in a motion to
dismiss or in the answer are deemed waived except the failure to
state a cause of action which may be alleged in a later pleading, if
one is permitted, or by motion for judgment on the pleadings, or at
the trial on the merits; but in the last instance, the motion shall be
disposed of as provided in section 5 of Rule 10 in the light of any
evidence which may have been received. Whenever it appears that
the court has no jurisdiction over the subject matter, it shall dismiss
the action."
And Section 2 of Rule 10 provides:

CIVIL PROCEDURE CASE DIGEST RULE 7-13

"SECTION 2. When amendments allowed as a matter of right. A
party may amend his pleading once as a matter of course at any
time before a responsive pleading is served or, if the pleading is one
to which no responsive pleading is permitted and the action has not
been placed upon the trial calendar, he may so amend it at any time
within ten (10) days after it is served." In the instant case, the motion
to amend was filed long after the pre-trial was terminated and the
case placed on the trial calendar. If Lasmarias failed to take any
positive action to amend his answer before pre-trial, he should have
raised during the pre-trial itself, which was conducted much later, his
other possible defenses and, accordingly, amend his answer for that
purpose. One of the avowed purposes for the holding of a pre-trial as
provided under Section 1, Rule 20 of the Rules of Court, is precisely
to consider "the necessity or desirability of amendments to the
pleadings."
The foregoing rules are not, however, iron-clad. Under Section 3 of
Rule 10, substantial amendments may be made even after the case
has been set for hearing provided prior leave of court is obtained.
Such leave may be refused if the motion requesting for the same
would delay the action or the cause of action or defenses would be
substantially altered by the proposed amendment. This rule was
correctly applied by the trial court.
As could be gleaned from Section 2 of Rule 9, two (2) defenses are
not deemed waived by the failure to raise them in a motion to
dismiss or in the answer, to wit: (a) lack of cause of action and lack
of jurisdiction on the part of the Court.

There is also authority to the effect that the defense of prescription is

not deemed waived, even if not pleaded in a motion to dismiss or in
the answer, if plaintiffs allegation in the complaint or the evidence he
presents shows clearly that the action has prescribed. 11
As to whether or not petitioner had encroached upon the lot of
private respondents, We see no reason to disturb the findings to the
trial court on this matter which were subsequently affirmed by the
respondent Court of Appeals; such findings are supported by the
evidence. The relocation survey conducted by Senior Geodetic
Engineer Norberto Carreon of the Bureau of Lands, prepared in the
presence of both parties who indicated to him the extent of their
"respective occupancies", discloses that the petitioner "is occupying
a portion of Lot No. 6094, Cad. 292, covered by TCT No. T-15314
issued to Genoviva (sic) Nadayag as indicated in the hereto (sic)
attached sketch plan shaded in black with an area of 30 square
meters."
IN VIEW OF ALL the FOREGOING, the instant petition is hereby DENIED for lack of
merit.
Costs against petitioner.
SO ORDERED.

RULE 12: BILL OF PARTICULARS

333 SCRA 100

Lack of cause of action may thus be raised in a motion to dismiss

after the answer has been filed, by a motion for judgment on the
pleadings, or at the trial on the merits. 8

JOSELITA
SALITA, petitioner, vs.
HON. DELILAH MAGTOLIS, in her capacity as Judge of the RTC,
Quezon City, Br. 107, and ERWIN ESPINOSA, respondents.

As to jurisdiction, while it is true that jurisdiction over the subject

matter of a case may be raised at any stage of the proceedings as
the same is conferred by law, 9 it is nevertheless settled that a party
may be barred from raising it on the ground of laches or estoppel. 10

FACTS:

Erwin Espinosa and Joselita Salita were married in church

rites on January 25, 1986.
A year later their union turned sour.
They separated in fact in 1988.

CIVIL PROCEDURE CASE DIGEST RULE 7-13

Subsequently, Erwin sued for annulment on the ground of

Joselitas psychological incapacity.
The petition for annulment was filed in January 7, 1992
before the RTC of Quezon City.
The petition alleged that sometime in 1987, petitioner came
to realize that respondent was psychologically incapacitated
to comply with the essential marital obligations of their
marriage, which incapacity existed at the time of marriage
although the same became manifest only thereafter.
Dissatisfied with the allegation in the petition, Joselita moved
for a bill of particulars which the trial court granted.
Joselita was not contented with the Bill of Particulars and
argued that the assertion in the bill of particulars is a
statement of legal conclusion made by petitioners counsel
and not an averment of ultimate facts, as required by the
Rules of Court, from which such a conclusion may be
properly be inferred.
The trial court found the Bill of Particulars adequate and
directed Joselita of file her responsive pleading.
Joselita was not convinced and she filed a petition for
certiorari with the Supreme Court.
The SC referred the same to the Court of Appeals.
The CA denied due course to her petition.
It was the view of the CA that the specification more than
satisfies the Rules requirement that a complaint must allege
the ultimate facts constituting plaintiffs cause of action.
Petitioner insists that the allegations in the Bill of Particulars
constitute a legal conclusion, not an averment of facts, and
fails to point out the specific essential marital obligations she
was not able to perform, and thus render the Bill of
Particulars insufficient if not irrelevant to her husbands
cause of action.

Private respondent on the other hand believes that his

allegations in the Bill of Particulars constitute the ultimate
facts which the Rules of Court requires.

ISSUE: Was the Bill of Particulars submitted by respondents of

sufficient definiteness or particularity as to enable herein petitioner to
properly prepare her responsive pleading.
HELD:
The Bill of Particular filed by private respondent is sufficient to state a
cause of action and to requirement more details from private
respondent would be to ask for information on evidentiary matters.
A complaint only needs to state the ultimate facts constituting the
plaintiffs cause or causes of action. Ultimate facts has been defined
as those facts which the expected evidence will support.
The Bill of Particular specified that *** at the time of marriage,
respondent (Joselita Salita) was psychologically incapacitated to
comply with the essential marital obligations of their marriage in that
she was unable to understand and accept the demands made by his
profession that of a verily qualified Doctor of Medicine upon
petitioners time and efforts sot that she frequently complained of his
lack of attention to her even to her mother, whose intervention
caused petitioner to loss his job.
Consequently, the SC has no other recourse but to order the
immediate resumption of the annulment proceedings which have
already been delayed for more than 2 years now, even before it
could reach its trial stage. Whether petitioner is psychologically
incapacitated should be immediately determined. There is no point in
unreasonably delaying the resolution of the petition and prolonging
the agony of the wedded couple who after coming out from a storm
still have the right to a renewed blissful life either alone or in the
company of each other.

CIVIL PROCEDURE CASE DIGEST RULE 7-13

G.R. No. L-15808 April 23, 1963
7 SCRA 688
FAUSTA AGCANAS, JUAN MIGUEL, JUANITA MIGUEL, assisted
by her husband ULPIANO PASION,
assisted by her husband JUAN PASCUAL, plaintiffs-appellees,
vs.
BRUNO MERCADO and ANTONIO DASALLA, defendantsappellants.

This is an appeal by defendants Mercado and Dasalla from the CFIIsabela on a question of law
FACTS:

Plaintiffs Agcanas, et al, filed an action to recover portions of

parcels of land in Isabela against defendants Mercado and
Dasalla
Defendants filed a motion for a bill of particulars
Notice of hearing was made on 8 Dec. 1956
The CFI received the motion only on 12 Dec. 1956
The CFI set it for hearing on 22 Dec. 1956
17 Dec. 1956: defendants filed a motion to dismiss, and set
the hearing thereof on 22 Dec. 1956
22 Dec. 1956: the court issued an order postponing
'consideration' of both motions to 29 Dec. 1956
7 Mar. 1957: the court denied the motion to dismiss; ordered
the defendants to file an Answer
Defendants failed to file an Answer; on motion of the
plaintiffs, the court issued an order declaring defendants
in default
Upon learning of the order of default, the defendants filed a
motion asking that the court set aside the order of default
and resolve the motion for a bill of particulars

The court denied said motion; it explained that the

defendants had "tacitly waived their right to push through
with the hearing of the motion for a bill of particulars,"
because of their failure to set it for hearing or to ask the
clerk of court to calendar it after denial of the motion to
dismiss
The defendants filed a record of appeal before the Supreme
Court
But because they subsequently filed a petition for relief
from the judgment of default, they asked that
consideration and approval of the record on appeal be
held in abeyance until said petition had been resolved
The request was granted
The petition for relief was denied
The motion for reconsideration on such denial was
also denied
Hence, this appeal

ISSUE: Whether the lower court erred in declaring the defendants in

default
RULING:
YES
Both a motion to dismiss and a motion for a bill of particulars
interrupt the time to file a responsive pleading
In a situation where:

motions to dismiss and for a bill of particulars are filed;

the resolution of the bill of particulars is held in
abeyance; and
the motion to dismiss is denied,
the period to file an Answer remains suspended until the
motion for a bill of particulars is denied (or if it is granted,

CIVIL PROCEDURE CASE DIGEST RULE 7-13

until the bill is served on the moving parties)
CAB:

The motion for a bill of particulars had yet to be resolved.

The defendants did not tacitly waive their right to the
resolution thereof by failing to set it for hearing
since it was already set for hearing (22 Dec 1956,
postponed to 29 Dec 1956)
Therefore, the period to file an Answer was still
suspended.
Since said period was still suspended, their failure to file
an Answer could not result in a ground for default
Hence, the lower court erred in declaring the defendants
in default

101 SCRA 327

SANTOS VS LIWAG
FACTS:

Jose Santos filed a complaint against Lorenzo J. Liwag with

the Court of First Instance of Manila, docketed therein as Civil Case
No. 57282, seeking the annulment of certain documents as having
been executed by means of misrepresentations, machination, false
pretenses, threats, and other fraudulent means, as well as for
damages and costs.

Liwag filed a bill of particulars on certain allegations on the

complaint.

The plaintiff opposed the motion saying that the allegations

in his complaint are sufficient and contain ultimate facts conconstituting his causes of action and that the subject of the
defendant's motion is evidentiary in nature.

The trial court granted the motion and directed the plaintiff

"to submit a bill of particulars with respect to the paragraphs

specified in defendant's motion",

The plaintiff failed to comply with the order.

The court, acting upon previous motion of the defendant, 5

dismissed the complaint with costs against the plaintiff.
ISSUE: WON the trial court erred in granting the motion for bill of
particulars filed by Respondent Liwag.
HELD:
NO
BILL OF PARTICULARS DISCRETIONARY UPON THE COURT. The allowance of a motion for a more definite statement or bill of
particulars rests within the sound judicial discretion of the court and,
as usual in matters of a discretionary nature, the ruling of the trial
court in that regard will not be reversed unless there has been a
palpable abuse of discretion or a clearly erroneous order.In the
instant case, the complaint is without doubt imperfectly drawn and
suffers from vagueness and generalization to enable the defendant
properly to prepare a responsive pleading and to clarify issues and
aid the court In an orderly and expeditious disposition tion in the
case.
NEED FOR A BILL OF PARTICULARS
DUE TO VAGUE
COMPLAINT; FAILURE OF TO COMPLY WITH A COURT ORDER
TO FILE A BILL OF PARTICULARS RESULTS IN DISMISSAL OF
COMLAINT. - The present action is one for the annulment of
documents which have been allegedly executed by reason of deceit,
machination, false pretenses, misrepresentation, threats, and other
fraudulent means. Deceit, machination, false pretenses,
misrepresentation, and threats, however, are largely conclusions of
law and mere allegations thereof without a statement of the facts to
which such terms have reference are not sufficient. The allegations
must state the facts and circumstances from which the fraud, deceit,
machination, false pretenses, misrepresentation, and threats may be
inferred as a conclusions In his complaint, the appellant merely

CIVIL PROCEDURE CASE DIGEST RULE 7-13

averred that all the documents sought to be annulled were all
executed through the use of deceits, machination, false pretenses,
misrepresentations, threats, and other fraudulent means without the
particular-facts on which alleged fraud, deceit, machination, or
misrepresentations are predicated.

RULE 13
FILING AND SERVICE OF PLEADINGS, JUDGEMENTS AND
OTHER PAPERS
209 SCRA 55
BENGUET VS NLRC

FACTS:
Private respondent Peter Cosalan was the General Manager of
Petitioner Benguet Electric Cooperative, Inc. ("Beneco").
respondent Cosalan received Audit Memorandum No. 1 issued by
the ("COA"). This Memorandum noted that cash advances received
by officers and employees of petitioner Beneco had been virtually
written off in the books of Beneco.COA directed petitioner Beneco to
secure the approval of the National Electrification Administration
("NEA") before writing off or condoning those cash advances, and
recommended the adoption of remedial measures.
another Memorandum was issued by COA Audit Memorandum
No. 2 addressed to respondent Peter Cosalan, inviting attention
to the fact that the audit of per diems and allowances received by
officials and members of the Board of Directors of Beneco showed
substantial inconsistencies with the directives of the NEA. The Audit
Memorandum once again directed the taking of immediate action in
conformity with existing NEA regulations.

Having been made aware of the serious financial condition of

Beneco and what appeared to be mismanagement, respondent
Cosalan initiated implementation of the remedial measures
recommended by the COA. The respondent members of the Board
of Beneco reacted by adopting a series of resolutions. These Board
Resolutions abolished the housing allowance of respondent Cosalan;
reduced his salary and his representation and commutable
allowances; directed him to hold in abeyance all pending personnel
disciplinary actions; and struck his name out as a principal signatory
to transactions of petitioner Beneco.
The respondent Beneco Board members adopted another series of
resolutions which resulted in the ouster of respondent Cosalan as
General Manager of Beneco and his exclusion from performance of
his regular duties as such, as well as the withholding of his salary
and allowances.
respondent Cosalan requested petitioner Beneco to release the
compensation due him. Beneco, acting through respondent Board
members, denied the written request of respondent Cosalan.
Respondent Cosalan then filed a complaint with the National Labor
Relations Commission ("NLRC") against respondent members of the
Beneco Board, challenging the legality of the Board resolutions
which ordered his suspension and termination from the service and
demanding payment of his salaries and allowances. the Labor Arbiter
rendered a decision (a) confirming Cosalan's reinstatement; (b)
ordering payment to Cosalan of his backwages and allowances by
petitioner Beneco and respondent Board members, jointly and
severally.
Respondent Board members appealed to the NLRC, and there filed
a Memorandum on Appeal. Petitioner Beneco did not appeal, but
moved to dismiss the appeal filed by respondent Board members
and for execution of judgment. By this time, petitioner Beneco had a
new set of directors.
In a decision, public respondent NLRC modified the award rendered
by the Labor Arbiter by declaring that petitioner Beneco alone, and

CIVIL PROCEDURE CASE DIGEST RULE 7-13

not respondent Board members, was liable for respondent Cosalan's
backwages and allowances.

106 SCRA 159

ALIMPOOS VS CA

ISSUE:
W/N the NLRC had acted with grave abuse of discretion in accepting
and giving due course to respondent Board members' appeal
although such appeal had been filed out of time
HELD:
Respondent Board member's contention runs counter to the
established rule that transmission through a private carrier or letterforwarder instead of the Philippine Post Office is not a
recognized mode of filing pleadings. 5The established rule is that the
date of delivery of pleadings to a private letter-forwarding agency is
not to be considered as the date of filing thereof in court, and that in
such cases, the date of actual receipt by the court, and not the date
of delivery to the private carrier, is deemed the date of filing of that
pleading.
There, was, therefore, no reason grounded upon substantial justice
and the prevention of serious miscarriage of justice that might have
justified the NLRC in disregarding the ten-day reglementary period
for perfection of an appeal by the respondent Board members.
Accordingly, the applicable rule was that the ten-day reglementary
period to perfect an appeal is mandatory and jurisdictional in nature,
that failure to file an appeal within the reglementary period renders
the assailed decision final and executory and no longer subject to
review. 7 The respondent Board members had thus lost their right to
appeal from the decision of the Labor Arbiter and the NLRC should
have forthwith dismissed their appeal memorandum.
*Respondent Board members, however, insist that their
Memorandum on Appeal was filed on time because it was delivered
for mailing on 1 May 1988 to the Garcia Communications Company,
a licensed private letter carrier. The Board members in effect contend
that the date of delivery to Garcia Communications was the date of
filing of their appeal memorandum.

Eliseo Alimpoos and Ciriaca Alimpoos Petitioner Pedro

Baclay, Catalino Yamilo, Rafael Capangpangan, Dalmacio Ygot,
Eufrocina Estores and Sgt. Millardo M. Pates- Witnesses.
RESPONDENTS:
Reynaldo Mosquito - Respondent/Accused.
Matilde A. Mosquito is the Accuseds wife.
Court of Appeals - Appellate Tribunal;
Judge Montano A. Ortiz - Trial Judge, and the Municipal Judge

FACTS:
The Accused was detained by the Chief of Police of Bayugan,
Agusan, by virtue of a Warrant of Arrest issued by the Municipal
Judge in the Criminal Case, which was a prosecution for Robbery
with Less Serious Physical Injuries. The place allegedly robbed
belonged to the Offended Parties. Contending that the Warrant was
issued without the observance of the legal requirements for the
issuance thereof, the Accused, then detained, and his wife instituted
the Habeas Corpus case before the Trial Court.
After due hearing in the Habeas Corpus case, respondent Trial
Judge issued the appealed Order declaring the detention of the
Accused illegal
[The Offended Parties and the Witnesses, except Sgt. Pates, were
represented by the law firm of Seno, Mendoza and Associates, with
offices located in Cebu City.

CIVIL PROCEDURE CASE DIGEST RULE 7-13

The Municipal Judge, the Chief of Police, and Patrolmen Libres and
Galimba, who were represented by the Acting Provincial Fiscal of
Butuan City,
Sgt. Pates was represented by Capt. Igualdad Cunanan, and
reiterated substantially the same defense.]

The Acting Provincial Fiscal of Agusan received copy of said ORDER

on March 31, 1966, and on April 1, 1966, moved for extension of
time within which to appeal, but eventually desisted from doing so.
On April 4, 1966, counsel for the Offended Parties and the Witnesses
mailed from Cebu City a Notice of Appeal to the Court of Appeals
stating that:
Undersigned counsel received a copy of the order only today
cranad(April 4, 1966) which copy was handed to him by defendant
cranad(petitioner) Eliseo Alimpoos.
The appeal was opposed by the Accused on the ground that it was
filed beyond the 48-hour reglementary period within which to perfect
an appeal in Habeas Corpus proceedings.

HELD:
Since the registered mail was received in Cebu City only on April 11,
1966, it is not unlikely that the law office and addressee, as alleged
by it, received the mail only three days after, or on April 14, 1966.
registered mail with Receipts #'s can not refer to personal receipt by
the said law office for the obvious reason that its office being at Cebu
City, personal service would not have been possible in Agusan.
It is apparent then that both respondent Trial Judge and the
Appellate Tribunal committed error in holding that the Offended
Parties appeal was beyond the reglementary period. Service on the
Offended Party, Eliseo Alimpoos, on March 31, 1966 cannot be
deemed as notice in law to his counsel. 8 Under the circumstances,
therefore, reliance may be placed on the assertion of counsel that
the Offended Party, Eliseo Alimpoos, had given him a copy of the
ORDER only on April 4, 1966, which must be deemed as the date of
notice to said counsel of the ORDER. Counsel lost no time in mailing
his Notice of Appeal on the same day, April 4, 1966 from Cebu. 9
Procedurally, the appeal was seasonably filed.

Respondent Trial Judge dismissed their appeal thus:

The Offended Parties resorted to a Mandamus proceeding before the
Court of Appeals seeking to compel respondent Trial Judge to give
due course to said appeal.
CA denied the mandamus

ISSUE:
W/n the appeal was done beyond the reglementary period

152 SCRA 555

G.R. No. L-58781

July 31, 1987

CIVIL PROCEDURE CASE DIGEST RULE 7-13

TEOFILO MAGNO, ISIDRO CABATIC, HERMINIO CABATIC,
FELICITAS CABATIC, Assisted by her husband, JOSE CARINO,
TOMAS MAGNO, ELPIDIO MAGNO, AURORA MAGNO, Assisted
by her husband, ODELON BUGAYONG, NICANOR MAGNO and
LOLITA
MAGNO, petitioners,
vs.
HONORABLE COURT OF APPEALS, GAVINO MAGNO, NICETAS
MAGNO, and NAZARIA MAGNO, Assisted by her husband,
SIMEON DE GUZMAN, respondents.
PARAS, J.:
This is a special civil action for certiorari seeking to declare void ab
initio the Resolution of respondent Court of Appeals dated
September 22, 1981 which ordered the issuance of an Entry of
Judgment in CA-G.R. No. 52655-R. The petition also prays for the
issuance of a preliminary injunction to temporarily maintain
the status quo by ordering the provincial sheriff of the province of
Pangasinan to desist from enforcing the writ of execution issued in
Civil Case No. A-413 pursuant to the said Entry of Judgment.
Civil Case No. A-413 is an action for Partition of Certain Properties
and for Damages, filed by private respondents against petitioners in
the Court of First Instance of Pangasinan, Branch VII thereof. In a
Decision* dated October 5, 1972, the lower court ordered the
partition of the properties subject of the complaint in accordance with
the schedule therein appearing. It also ordered the petitioners to pay
jointly and severally unto the private respondents the amount of
P3,000.00 as attorney's fees.
Petitioners appealed to the Court of Appeals which appeal was
docketed as CA-G.R. No. 52655-R. On June 30, 1981, the said court
promulgated its Decision** affirming the decision of the lower court.
Notice of the decision was sent to petitioners' counsel Atty. Atinidoro
B. Sison at his given mailing address which is 33 B.M.A. Ave.,
Tatalon, Quezon City. The same, however, was returned to the court
with the certification of the postmaster "Return to sender, Reason
moved."

On September 14, 1981, respondent Court of Appeals issued the

following Resolution:
Considering that the copy of Decision dated June 30, 1981
addressed to Atty. Atinidoro B. Sison of 33 B.M.A. Tatalon,
Quezon City, counsel for the appellants was returned
unclaimed with the notation on the envelope "MOVED", the
Court Resolved to resend the said copy of the Decision to
the appellants themselves at Alaminos, Pangasinan, and the
appellants are hereby informed that the fifteen (15) days
period within which to file for reconsideration will be counted
from the receipt of the decision herewith attached. (Annex
"5-A" p. 54, Rollo).
A copy of this Resolution was sent to petitioners themselves
addressed as follows Mr. Teofilo Magno et al., Patricio, Alaminos,
Pangasinan. It is not disputed that this address is the address on
record of petitioners. But again the enveloped addressed to them
was returned to the court with the notation deceased.
On September 22, 1981, the respondent court issued its now
assailed Resolution ordering the issuance of the entry of judgment.
Petitioners' motion for reconsideration was denied hence, they filed
the present petition, which We find to be without merit.
It is well-settled that when a party is represented by counsel,
notice should be made upon the counsel of record at his given
address to which notices of all kinds emanating from the court
should be sent in the absence of a proper and adequate notice
to the court of a change of address. (Cubar vs. Mendoza, 120
SCRA 768).lawph
In the case now before Us, the records show that the notice and
copy of the decision of respondent Court of Appeals were sent to
petitioners's counsel of record Atty. Atinidoro E. Sison at his given
mailing address which is 33 B.M.A. Avenue, Tatalon, Quezon City.
The first notice to him by the Postmaster to claim his mail was on
July 9, 1981. The rule is that service of notice becomes effective at

CIVIL PROCEDURE CASE DIGEST RULE 7-13

the expiration of the five-day period upon failure of the addresse to
claim his mail within five (5) days from the date of first notice Sec. 8,
Rule 13 Rules of Court (Feraren vs. Santos, 113 SCRA 707).
Therefore in this case the service became effective five days after
July 9, 1981 which is July 14, 1981. The decision became final on
August 13, 1981. A xerox copy of the said envelope properly
addressed appears on page 52 of the Rollo. This fact is further
shown by the certification issued by the then Acting Clerk of the
Court of Appeals, Atty. Cesar M. Marzan. (p. 51, Rollo). If Atty. Sison
moved to another address without informing the respondent of his
change of address the omission or neglect will not stay the finality of
the decision. The notice sent to petitioners themselves, under the
circumstances is not even necessary. (Francisco vs. Puno, 108
SCRA 427). It may be stated though that while petitioners claim that
Teofilo Magno to whom the notice to the petitioners was addressed is
already dead, it is not explained why their present petition before this
Court still includes the name Teofilo Magno. There is no indication in
the record that he has been duly substituted by his legal
representative.

ADAMSON OZANAM EDUCATIONAL INSTITUTION INC., ALSO

KNOWN
AS
ADAMSON
UNIVERSITY,petitioner,
vs.
ADAMSON
UNIVERSITY
FACULTY
AND
EMPLOYEES
ASSOCIATION AND CONRADO MAGLAYA, COMMISSIONER OF
THE NATIONAL LABOR RELATIONS COMMISSION, respondents.

The decision in this case having become final on July 29, 1981, there
being no appeal taken therefrom, respondent court committed no
error in issuing its resolution dated September 22, 1981 ordering the
issuance of the corresponding entry of judgment.

The contention of the AU is that P.D. No. 451 was repealed by the
Educational Act of 1982, which took effect on September 12, 1982,
and that assuming that B.P. No. 451 was not repealed, complainant
is not entitled to any benefit considering that there was no actual
increment proceeds in the tuition fee increase for the school year
1983-84 upon which to base the 60% allocation.

WHEREFORE, for lack of merit, this petition is hereby DISMISSED.

The restraining order earlier issued is lifted.
SO ORDERED.
Yap (Chairman), Melencio-Herrera, Padilla and Sarmiento, JJ.,
concur.
179 SCRA 279
G.R. No. 86819 November 9, 1989

GANCAYCO, J.:
The Adamson Ozanam Educational Institution, Inc. also known as
the Adamson University (AU) was granted by the then Ministry of
Education, Culture & Sports (MECS), the authority to increase their
tuition fees by 10% and 5% for the school year 1983-84. The
Adamson University Faculty and Employees Association (AUFEA)
believing that under P.D. No. 451 60% thereof should be allocated for
the increase in salaries and wages of the members of the faculty and
other members of the school filed a complaint in the Ministry of Labor
& Employment (MOLE) against the AU for the recovery of the said
60%.

In a decision of the labor arbiter dated March 31, 1986 the complaint
was dismissed for lack of merit. The AUFEA appealed therefrom to
the National Labor Relations Commission (NLRC) wherein in due
course a decision was rendered on September 30, 1988 setting
aside the appealed decision and ordering the AU to remit to the
members of AUFEA the amount of P1,298,160.00 representing the
60% share in the increment proceeds of the tuition fees collected for
the school year 1983-84. A motion for reconsideration of the said
decision filed by the AU was denied in a resolution dated January 30,
1989 for having been filed out of time.

CIVIL PROCEDURE CASE DIGEST RULE 7-13

Hence, the herein petition for certiorari filed by the AU. On February
22, 1989, the court dismissed the petition for failure to sufficiently
show that respondent commission had committed a grave abuse of
discretion in rendering its questioned judgment. A motion for
reconsideration hereof was filed by petitioner to which respondents
were required to file their comment. The desired comments having
been submitted and the reply thereto filed by petitioner, the court
finds a cogent basis to grant the motion for reconsideration. The
petition is based on the following arguments:
SERVICE OF THE DECISION UPON THE
SECURITY GUARD OF THE TOEFEMI BUILDING,
WHERE RESPONDENT'S FORMER COUNSEL
USED TO HOLD OFFICE, IS INEFFECTIVE AND
DOES NOT CAUSE THE RUNNING OF THE 10DAY PERIOD FOR AN APPEAL.
BASED ON THE MERITS OF THE CASE, THE
SUBJECT DECISION PROMULGATED ON 30
SEPTEMBER 1988 IS CONTRARY TO THE
DOCTRINE LAID DOWN IN CEBU INSTITUTE OF
TECHNOLOGY ET AL. VS. HON. BLAS OPLE, ET
AL.
On the first issue, it appears that the decision of the NLRC dated
September 30, 1988 was served to the office of the counsel for
petitioner on October 11, 1988 through the security guard of the
building. The office of then counsel for petitioner, Atty. Andres
Narvasa (now member of this Court), was located at the TOEFEMI
building. The copy of the decision was addressed to Atty. Roberto I.
Santos of said law office. However, at the time of said serllice the
said law office was already dissolved as Atty. Narvasa was appointed
as a member of this Court. Nevertheless, a copy of said decision
was transmitted by the former office of now Mr. Justice Narvasa to
the present counsel of record for petitioner on November 5, 1988
who promptly filed a motion for reconsideration on November 15,
1988.

In denying the motion for reconsideration the NLRC observed that

the former counsel of petitioner did not withdraw nor file a
manifestation that his office had been dissolved so he cannot
continue to act as counsel thereof.
Thus the question that arises is whether the service of the copy of
the decision upon the security guard of the building where the former
office of petitioner's counsel was located was sufficient compliance
with the requirements of the law. Section 4, Rule 13 of the Rules of
Court which is suppletory to the rules of the NLRC, provides as
follows:
Section 4. Personal Service. Service of the
papers may be made by delivering personally a
copyto the party or his attorney, 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, then by leaving the copy,
between the hours of eight in the morning and six in
the evening, at the party's or attomey's residence, if
known, with a person of sufficient discretion to
receive the same. (Emphasis supplied)
Under the foregoing rule, service of papers should be delivered
personally to the party or attorney or by leaving it at his office with his
clerk or with a person having charge thereof. The service of the
court's order upon any person other than the party's counsel is not
legally effective. 1 Where the copy of the decision is served on a
person who is neither a clerk or one in charge of the attorney's office,
such service is invalid and the decision does not therefore become
executory. 2 The security guard of the building where the attorney is
holding office is neither the office clerk nor a person in charge thereof
as contemplated in the rules. In PLDT vs. NLRC, 3 this Court ruled
that the service of the decision at the ground floor of a party's
building when the office is at the 9th floor is not a valid service.
From the foregoing, it is clear that the service of the decision dated
October 11, 1988 on the security guard of the building where the
then counsel for petitioner was holding office was an invalid service

CIVIL PROCEDURE CASE DIGEST RULE 7-13

and the running of the period within which to appeal therefrom or file
a motion for reconsideration cannot be deemed to commence
thereby.

medicare, unpaid school personnel claims, and

payment as may be prescribed by mandated wage
orders, collective bargaining agreements and
voluntary employer practices ... (Sec. 42; Emphasis
supplied)

While it is true that said former counsel of petitioner failed to

withdraw his appearance, the NLRC can take judicial notice of the
fact that Mr. Justice Narvasa was already elevated to the Supreme
Court at the time the decision in this case was promulgated. Since its
decisions are reviewable by the Supreme Court such matter of public
knowledge should be within the judicial notice of the NLRC because
of the nature of their functions. 4

Accordingly, as of September 11, 1982, Section 3(a) of PD 451 which

limits the disposition of said 60% incremental proceeds increase in
tuition fees to those of salaries and wages is deemed abrogated by
way of repeal. 6 Indeed even prior thereto this Court ruled in the
University of the East vs. UE Faculty Association 7 as follows:

On the second issue, the order of respondent NLRC to petitioner to

remit to the respondent AUFEA the sum of P1,298,160.00
representing its 60% share in the increment tuition fees collected for
the school year 1983-1984 is predicated on the argument that: 1)
MECS Order No. 25 took effect on April 1, 1985 and prior thereto this
Court has ruled that the 60% incremental proceeds should be
applied to the basic salaries and wages; and 2) inasmuch as the
CBA was concluded two (2) days after petitioner was granted the
authority to increase its tuition fees, it does not necessarily follow
that the parties intended that the CBA benefits will be taken from the
said incremental proceeds.

We are underscoring such modification because as

We see it, it settles the second main issue We have
stated at the outset as to whether or not increase of
salaries of wages or allowances or benefits secured
by collective bargaining may be charged against the
incremental proceeds (60%) under PD 451. We read
the latest Malacaang decision to mean that
increase of salaries even those secured bv
collective bargaining may be charged to the 60%
incremental proceeds of MEC authorized tuition fee
increases. ... (Emphasis supplied)

We disagree.
In the case of Cebu Institute of Technology vs. Hon. Blas Ople, 5 this
Court ruled that P.D. No. 451 was repealed by B.P. 232 effective
September 11, 1982. From the said date the governing law on the
disposition of the 60% incremental proceeds on the tuition fees are
the appropriate provisions of B.P. Blg. 232, which, in pertinent part
provides as follows:
Not less than sixty (60) percent of the incremental
tuition proceeds shall be used for salaries or wages,
allowances and fringe benefits of faculty and support
staff, including cost of living allowance, imputed
costs of contributed services, thirteenth (13th) month
pay, retirement fund contributions, social security,

MECS Order No. 25 finds legal support in B.P. Blg. 232, otherwise
known as the Educational Act of 1982 as said MECS Order is an
implementing administrative rule interpretative of a pre-existing
statute and not declarative of certain rights with obligation
thereunder. The same should be given retroactive effect and its
effectivity should be on September 11, 1982, which is the date of
effectivity of B.P. Blg. 232, not April 1, 1985. Remedial or curative
statutes are by nature intended to be retroactive. 8
And this is as it should be as rules and regulations are and should be
for the sole purpose of carrying into effect a general provision of the
law. 9 Thus guided bv the Cebu Institute of Technology which
declared the automatic repeal of P.D. 451 respondent NLRC
committed a grave error in ruling that petitioner cannot charge to the

CIVIL PROCEDURE CASE DIGEST RULE 7-13

60% incremental proceeds the items under paragraph 7.4 of the
MECS Order No. 25 including collective bargaining.
WHEREFORE, the motion for reconsideration is granted and the
resolution of February 22, 1989 is set aside; the petition is
GRANTED so that the questioned decision of the NLRC dated
September 30, 1988 and its resolution dated January 20, 1989 are
hereby REVERSED AND SET ASIDE while the decision of the labor
arbiter dated March 31, 1986 dismissing the complaint for lack of
merit is hereby AFFIRMED without pronouncement as to costs.
SO ORDERED.
101 SCRA 146
G.R. No. L-50711

November 17, 1980

SIMEON ARAMBURO and CORAZON ARAMBURO KO,

SALVACION TAN DE ARAMBURO, JESUS T. ARAMBURO, JULIO
T. ARAMBURO, JOSEPHINE T. ARAMBURO, MARY JANE T.
ARAMBURO, AUGUSTO T. ARAMBURO, JR., JAIME T.
ARAMBURO, JULIET T. ARAMBURO, JACKSON T. ARAMBURO,
JOCELYN T. ARAMBURO, JOVY T. ARAMBURO, petitioners,
vs.
COURT OF APPEALS, CONCEPCION R. PEA, PROVINCIAL
SHERIFF OF ALBAY, respondents.
FACTS:
The petitioners filed with the Court of First Instance of Albay an
application
for
registration
of
lots.
The application for registration was opposed by the respondent,
Concepcion R. Pea who prayed that she be declared the owner of
said lots. She filed with the same Court of First Instance of Albay an
action for reivindicacion with damages seeking to recover from the
petitioners the two lots covered by the application for registration.

a decision was rendered by the Court of First Instance of Albay

dismissing both cases. From said decision, the respondent appealed
to the Court of Appeals. the decision was REVERSED:
(1) Declaring plaintiff-appellant the absolute owner of the three lots in
question;
(2) Ordering the defendants to vacate said lots and deliver the
possession
thereof
to
the
plaintiffPetitioners-appellees now assail the decision of the Court of Appeals
on the ground of lack of procedural due process. They contend that
they were deprived of their day in court when the appeal was
submitted for decision without their brief. Allegedly they were not
able to file their brief because the respondent-appellant did not
furnish them with a copy of the appellant's brief. They further contend
that they did not receive both the resolution of the Court of Appeals
dated September 23, 1971, which considered the case as submitted
for decision without appellee's brief, as well as the decision of said
court dated December 28, 1978, and that it was only on May 9,
1979, that they learned of the judgment of said court when the
Deputy Provincial Sheriff of Albay served upon them a copy of the
writ
of
execution
enforcing
said
judgment.

Respondents denied petitioners' claim of lack of procedural due

process, respondents allege that the counsel for the petitionersappellees were furnished with copies of the appellant's brief per
registry receipts nos. 6724 and 6725, which were filed with the Court
of Appeals along with the appellant's brief and were attached to the
Rollo of the appealed case. Respondents further noted that the
counsel for petitioners-appellees likewise received copies of the
Court of Appeals' resolution per registry return cards attached to the
Rollo of the case. Respondents finally contend that since the
petitioners-appellees did not appeal from the decision of the Court of
Appeals nor move for reconsideration thereof, said decision became
final and executory and that, consequently, the execution of said
decision is in order and should not be restrained by this Court.
Accordingly, respondents pray that the temporary restraining order
be lifted and that the petition be denied for lack of merit.

CIVIL PROCEDURE CASE DIGEST RULE 7-13

ISSUE:
whether or not the herein petitioners were deprived of procedural
due
process
HELD:
We are inclined to believe petitioners' allegation that they were not
served with a copy of the appellant's brief. For it must be observed
that the duty of proving service of the appellant's brief upon the
appellee lies with the appellant, the private respondent herein, who,
regretably, failed to comply with the same. Section 10, Rule 14 of the
Rules
of
Court
provides

Secondly, said registry receipts are evidence of the posting of the

mail matter with the post office of the sender not of the delivery of
said mail matter by the post office of the addressee. Thirdly, the date
of actual delivery to the addressee cannot be ascertained from such
registry receipts, And, finally, the possibility of presenting registry
receipts covering mail matters different from those involved in the
litigation cannot be discounted. (See: resolution of the Supreme
Court, Second Division, dated May 21, 1980, in G.R. No. 51378
entitled "American President Lines vs. The Honorable Court of
Appeals, et al.")
293 scra 661
SOLAR TEAM ENTERTAINMENT vs. RICA-FORT

SEC 10. PROOF OF SERVICE. Proof of personal service shall

consist of a written admission of the party served, or the affidavit of
the party serving, containing a full statement of the date, place and
manner of service, ... 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 receipt thereof by the sender, or in lieu thereof the letter
unclaimed together with the certified or sworn copy of the notice
given
by
the
postmaster
to
the
addressee.
Conformably with the foregoing provision, sufficient proof of service
of the appellant's brief upon the appellees, which was allegedly
effected thru registered mail, consists of: (1) the affidavit of the party
serving, containing a full statement of the date, place and manner of
service; (2) the registry receipt issued by the mailing office; and (3)
the registry return card or, in lieu thereof, the letter unclaimed
together with the certified or sworn copy of the notice given by the
postmaster to the addressee. The records of the case, however,
reveal that only the registry receipts allegedly issued by the mailing
office were presented by the respondent-appellant as proof of
service of her brief upon petitioners-appellees. Such registry receipts
cannot be considered as sufficient proof of service of the appellant's
brief. Firstly, to hold otherwise would be to disregard the explicit
requirements of the aforequoted provision of the Rules of Court.

G.R. No. 132007 August 5, 1998

FACTS:
This is a case for the recovery of possession and damages with a
prayer for a writ of replevin. Private respondents filed their Answer
and a copy was furnished to the counsel of petitioner by registered
mail but the pleading did not contain and written explanation why
personal service was not made upon petitioner-plaintiff as required
by the Rules of Court.
On 11 August 1997, petitioner filed a motion to expunge the "Answer
(with Counterclaims)" and to declare herein private respondents in
default, 5 alleging therein that the latter did not observe the mandate
of the aforementioned Section 11, and that there was:
[A]bsolutely
no
valid
reason
why
defendant[s] should not have personally
served plaintiff's . . . counsel with [a] copy of
their answer [as] (t)he office of defendant's
(sic) counsel, Atty. Froilan Cabaltera, is just
a stone [sic] throw away from the office of

CIVIL PROCEDURE CASE DIGEST RULE 7-13

[petitioner's] counsel, with an estimate (sic)
distance of about 200 meters more or less.
Petitioner further alleged that the post office was "about ten (10)
times farther from the office of Atty. Cabaltera,"
ISSUE: Whether or not respondent judge committed grave abuse of
discretion amounting to lack or excess of jurisdiction in denying
petitioner's motion to expunge private respondents' answer with
counterclaims on the ground that said pleading was not served
personally
HELD:
We thus take this opportunity to clarify that under Section 11, Rule 13
of the 1997 Rules of Civil Procedure, personal service and filing is
the general rule, and resort to other modes of service and filing, the
exception. Henceforth, whenever personal service or filing is
practicable, in light of the circumstances of time, place and person,
personal service or filing is mandatory. Only when personal service
or filing is not practicable may resort to other modes be had, which
must then be accompanied by a written explanation as to why
personal service or filing was not practicable to begin with. In
adjudging the plausibility of an explanation, a court shall likewise
consider the importance of the subject matter of the case or the
issues involved therein, and the prima facie merit of the pleading
sought to be expunged for violation of Section 11. This Court cannot
rule otherwise, lest we allow circumvention of the innovation
introduced by the 1997 Rules in order to obviate delay in the
administration of justice.
Returning, however, to the merits of this case, in view of the
proximity between the offices of opposing counsel and the absence
of any attendant explanation as to why personal service of the
answer was not effected, indubitably, private respondents' counsel
violated Section 11 of Rule 13 and the motion to expunge was prima
facie meritorious. However, the grant or denial of said motion
nevertheless remained within the sound exercise of the trial court's
discretion. Thus, as guided by Section 6, Rule 1 of the 1997 Rules of

Civil Procedure, which ordains that the Rules shall be liberally

construed in order to promote their objective of securing a just,
speedy and inexpensive disposition of every action or proceeding, as
well as by the dictum laid down in Alonso v. Villamor, 16 Phil. 315
[1910], the trial court opted to exercise its discretion in favor of
admitting the "Answer (with Counterclaims)," instead of expunging it
from the record.
To our mind, if motions to expunge or strike out pleadings for
violation of Section 11 of Rule 13 were to be indiscriminately
resolved under Section 6 of Rule 1 or Alonzo v. Villamor and other
analogous cases, then Section 11 would become meaningless and
its sound purpose negated. Nevertheless, we sustain the challenged
ruling of the trial court, but for reasons other than those provided for
in the challenged order.
The 1997 Rules of Civil Procedure took effect only on 1 July 1997,
while the questioned "Answer (with Counterclaims)" was filed only on
8 August 1997, or on the 39th day following the effectivity of the 1997
Rules. Hence, private respondents' counsel may not have been fully
aware of the requirements and ramifications of Section 11, Rule 13.
In fact, as pointed out by petitioner's counsel, in another case where
private respondents' counsel was likewise opposing counsel, the
latter similarly failed to comply with Section 11.
WHEREFORE, the instant petition is DISMISSED.