1997 Rules on Civil Procedure Rule 46

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

Rule 46
ORIGINAL CASES

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

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

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

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

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

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

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

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

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

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

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

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

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

requirements. The petition shall contain the full names and actual addresses of
all the petitioners and respondents, a concise statement of the matters
involved, the factual background of the case, and the grounds relied upon for
the relief prayed for.
In actions filed under Rule 65, the petition shall further indicate the
material dates showing when notice of the judgment or final order or resolution
subject thereof was received, when a motion for new trial or reconsideration,
if any, was filed and when notice of the denial thereof was received. (Cir. No.
39-98)
It shall be filed in seven (7) clearly legible copies together with proof of
service thereof on the respondent with the original copy intended for the court
indicated as such by the petitioner, and shall be accompanied by a clearly
legible duplicate original or certified true copy of the judgment, order,
resolution, or ruling subject thereof, such material portions of the record as
are referred to therein, and other documents relevant or pertinent thereto. The
certification shall be accomplished by the proper clerk of court or by his duly
authorized representative, or by the proper officer of the court, tribunal,
agency or office involved or by his duly authorized representative. The other
requisite number of copies of the petition shall be accompanied by clearly
legible plain copies of all documents attached to the original.
The petitioner shall also submit together with the petition a sworn
certification that he has not theretofore commenced any other action involving
the same issues in the Supreme Court, the Court of Appeals or different
divisions thereof, or any other tribunal or agency; if there is such other

Lakas Atenista 107

Ateneo de Davao University College of Law
1997 Rules on Civil Procedure Rule 46
2001 Edition <draft copy. pls. check for errors> Original Cases

action or proceeding, he must state the status of the same; and if he should
thereafter learn that a similar action or proceeding has been filed or is
pending before the Supreme Court, the Court of Appeals, or different divisions
thereof, or any other tribunal or agency, he undertakes to promptly inform the
aforesaid courts and other tribunal or agency thereof within five (5) days
therefrom.
The petitioner shall pay the corresponding docket and other lawful fees to
the clerk of court and deposit the amount of P500.00 for costs at the time of
the filing of the petition.
The failure of the petitioner to comply with any of the foregoing
requirements shall be sufficient ground for the dismissal of the petition. (n)

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

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

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

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

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

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

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

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

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

-oOo-

Lakas Atenista 108

Ateneo de Davao University College of Law