PROVISIONAL REMEDIES

AND SPECIAL CIVIL ACTIONS

Outline
Justice Magdangal M. de Leon
PROVISIONAL REMEDIES
PROVISIONAL REMEDIES UNDER THE RULES OF COURT:
a. Attachment (Rule 57)
b. Preliminary Injunction (Rule 58)
c. Receivership (Rule 59)
d. Replevin or delivery of private property (Rule 60)
e. Support Pendente Lite (Rule 61)
f. Criminal Cases (Rule 127 – in connection with the civil action deemed instituted with the criminal action)
OTHER PROVISIONAL REMEDIES
a. Temporary Protection Order [TPO] (RA 9262, Anti-Violence Against Women and their Children; Rule on
the Writ of Amparo)
b. Witness Protection Order [WPO] (RA 6981; Rule on the Writ of Amparo)
c. Inspection Order [IO] (AM 07-9-12, Rule on the Writ of Amparo)
d. Production Order [PO] (AM 07-9-12, Rule on the Writ of Amparo)
e. Administration of Common Property (AM 02-11-12, Rule on Provisional Orders)
f. Inspection, Examination of Accounts and Freeze Order (RA 9372, Human Security Act)
g. Freeze Order under RA 9160 as amended by RA 9194 (Anti-Money Laundering Act)
h. Seizure and Sequestration of Accounts and Assets (RA 9372, Human Security Act)
i. Restriction of Travel (RA 9372, Human Security Act)
j. Stay Order ( AM 00-8-10, Rules of Procedure on Corporate Rehabilitation)
k. Hold Departure Order (Criminal cases under Circular 39-97 and Family cases under AM 02-11-12)
l. Temporary visitation rights (AM 02-11-12, Rule on Provisional Orders )
m. Guardian Ad Litem of Child (AM 02-1-19, Rule on Involuntary Commitment of Children)
n. Temporary Custody of Child (AM 02-1-19 and AM 02-11-12)
o. Spousal and Child Support (AM 02-11-12, Rule on Provisional Orders)
COMMON REQUIREMENTS
a. Affidavits are required to support the issuance of these remedies, except injunction and receivership.
b. A bond is also required to answer for damages by reason of the improvident issuance of the writ.
Exceptions: temporary restraining order, support pendente lite, inspection of accounts and freeze order
(Human Security Act), inspection and production orders (rule on the writ of amparo), seizure and sequestration
of accounts and assets (Human Security Act), restriction of travel (Human Security Act) and hold departure
order (Circular 39-97 and AM 02-11-12). Recovery of damages from the bond is governed by Rule 57, Section
20.
PRELIMINARY ATTACHMENT - Rule 57
DEFINITION AND NATURE
1. The provisional remedy of preliminary attachment is harsh and rigorous for it exposes the debtor to
humiliation and annoyance. The rules governing its issuance are, therefore,strictly construed against the
applicant (Wee vs. Tankiansee, G.R. No.171124, February 13, 2008). If the requisites for its grant are not
shown to be all present, the court shall refrain from issuing it, for, otherwise, the court which issues it acts in
excess of its jurisdiction (See Philippine Bank of Communications v. Court of Appeals, G.R. No.
115678,February 23, 2001, 352 SCRA 616). Likewise, the writ should not be abused to cause unnecessary
prejudice. If it is wrongfully issued on the basis of false or insufficient allegations, it should at once be corrected
(Wee vs. Tankiansee, supra, citing Benitez v. Intermediate Appellate Court, No. L-71535, September 15, 1987,
154 SCRA 41, 46).
2. Attachment is a proceeding in rem. It is against the particular property, enforceableagainst the whole
world. The attaching creditor acquires a specific lien on the attached property which ripens into a judgment
against the res when the order of sale is made. It in effect means that the property attached is an indebted
thing and a virtual condemnation of it to pay the owner's debt (Biñan Steel Corporation vs. Court of
Appeals, October 15, 2002,391 SCRA 90).
 .
Sufficiency of grounds to sustain an attachment: fraudulent intent cannot be inferred from a debtor’s
inability to pay or comply with obligations
We find an absence of factual allegations as to how the fraud alleged by petitioner was committed. As
correctly held by respondent Court of Appeals, such fraudulent intent not to honor the admitted obligation
cannot be inferred from the debtor’s inability to pay or to comply with the obligations (PCL Industries
Manufacturing Corporation vs. CA, G.R. No. 147970, March 31, 2006, 486 SCRA 214, citing Philippine
National Construction Corporation v. Dy, G.R. No. 156887, October 3, 2005).
Property to be attached only so much as to satisfy demand
The sheriff is required to attach only so much of the property of the party against whom the order is issued
as may be sufficient to satisfy the applicant’s demand, the amount of which is stated in the order, unless a
deposit is made or a counter bond is given equal to said amount. However, if the value of the property to be
attached is less than the amount of the demand, the amount of the applicant’s bond may be equal to the value
of said property, and the amount of the adverse party’s deposit or counter bond may be equal to the applicant’s
bond. The writ of preliminary attachament is issued upon the approval of the requisite bond (Insular Savings
Bank vs. Court of Appeals, G.R. No. 123638, June 15, 2005).
Cause of action must be specifically stated in the affidavit; sufficiency of the averments in applicant’s
affidavit
The basis of petitioner’s application for the issuance of the writ of preliminary attachment against the
properties of respondent is Section 1(d) of Rule 57. For a writ of attachment to issue under this rule, the
applicant must sufficiently show the factual circumstances of the alleged fraud because fraudulent intent
cannot be inferred from the debtor’s mere non-payment of the debt or failure to comply with his obligation
(See Philippine NationalConstruction Corporation vs. Dy, G.R. No. 156887, October 3, 2005, 472 SCRA 1, 9-
12). The applicant must then be able to demonstrate that the debtor has intended to defraud the creditor
(Spouses Godinez vs. Hon. Alano, A.M. RTJ-98-1409, February 18, 1999, 362 Phil. 597). The affidavit,
being the foundation of the writ, must contain such particulars as to how the fraud imputed to
respondent was committed for the court to decide whether or not to issue the writ (Wee vs.
Tankiansee, G.R. No.171124,February 13, 2008).
Improper issuance and service of writ of attachment
A distinction should be made between issuance and implementation of the writ of attachment. This is
necessary to determine when jurisdiction over the defendant should be acquired to validly implement the writ.
The grant of the provisional remedy of attachment involves three stages: first, the court issues the order
granting the application; second, the writ of attachment issues pursuant to the order granting the writ;
and third, the writ is implemented. For the initial two stages, it is not necessary that jurisdiction over the
person of the defendant be first obtained, but once the implementation of the writ commences, the
court must have acquired jurisdiction over the defendant (Mangila vs. Court of Appeals, G.R. No.
125027, August 12, 2002, 387 SCRA 162).
Preference of levy on attachment duly registered over a prior unregistered sale
The settled rule is that levy on attachment, duly registered, takes preference over a prior unregistered sale.
The preference created by the levy on attachment is not diminished even by the subsequent registration of the
prior sale. This is so because an attachment is a proceeding in rem. It is against the particular property,
enforceable against the whole world. The attaching creditor acquires a specific lien on the attached
property which nothing can subsequently destroy except the very dissolution of the attachment or levy
itself. The lien continues until the debt is paid, or sale is had under execution issued on the judgment, or until
the judgment is satisfied, or the attachment discharged or vacated in some manner provided by law. Thus, in
the registry, the attachment in favor of respondents appeared in the nature of a real lien when petitioner had
his purchase recorded. The effect of the notation of said lien was to subject and subordinate the right of
petitioner, as purchaser, to the lien (Valdevieso vs. Damalerio, G.R. No. 133303, February 17, 2005, 451
SCRA 664, 670).
Such a proceeding, in effect, means that the property attached is an indebted thing and a virtual
condemnation of it to pay the owner’s debt. The lien continues until the debt is paid, or sale is had under
execution issued on the judgment, or until the judgment is satisfied, or the attachment discharged or vacated in
some manner provided by law. Thus, in the registry, the attachment in favor of respondents appeared in the
nature of a real lien when petitioner had his purchase recorded. The effect of the notation of said lien was to
subject and subordinate the right of petitioner, as purchaser, to the lien (Valdevieso vs. Damalerio, G.R. No.
 133303, February 17, 2005, 451 SCRA 664, 670; See also Lavides vs. Pre, G.R. No. 127830, October
21, 2001 and Biñan Steel Corporation vs. Court of Appeals, October 15, 2002, 391 SCRA 90).
The principal claim of respondent, as plaintiff a quo, is in the amount of P25,200,000.00, representing the
three (3) unfunded checks drawn against, and presented for clearing to, respondent bank. Jurisprudence
teaches that a writ of attachment cannot be issued for moral and exemplary damages, and other
unliquidated or contingent claim (Insular Savings Bank vs. Court of Appeals, G.R. No. 123638, June 15, 2005,
460 SCRA 122).
Merits of the action in which a writ of preliminary attachment has been issued not triable on a motion
for dissolution of the attachment. When the preliminary attachment is issued upon a ground which is at the
same time the applicant’s cause of action, the defendant is not allowed to file a motion to dissolve the
attachment under Section 13 of Rule 57 by offering to show the falsity of the factual averments in the plaintiff’s
application and affidavits on which the writ was based – and consequently that the writ based thereon had
been improperly or irregularly issued – the reason being that the hearing on such a motion for dissolution of the
writ would be tantamount to a trial of the merits of the action. In other words, the merits of the action would be
ventilated at a mere hearing of a motion, instead of at the regular trial (Chuidian vs. Sandiganbayan, G.R. No.
139941, January 19, 2001).
There are only two ways of quashing a writ of attachment: (a) by filing a counterbond immediately; or (b)
by moving to quash on the ground of improper and irregular issuance. These grounds for the dissolution of an
attachment are fixed in Rule 57 of the Rules of Court and the power of the Court to dissolve an attachment is
circumscribed by the grounds specified therein. Petitioner’s motion to lift attachment failed to demonstrate any infirmity
or defect in the issuance of the writ of attachment; neither did he file a counterbond (Chuidian vs.
Sandiganbayan, G.R. No. 139941, January 19, 2001).
Without evidence of malice, attaching party not liable for moral damages. A wrongful attachment may
give rise to liability for moral damages but evidence must be adduced not only of the torment and humiliation
brought upon the defendant by the attaching party but also of the latter's bad faith or malice in causing the
wrongful attachment, such as evidence that the latter deliberately made false statements in its application for
attachment. Absent such evidence of malice, the attaching party cannot be held liable for moral damages.
(Spouses Santiago vs. Allied Banking Corporation, G. R. No. 16450, November 25, 2008)
Attachment bond under Sec. 3 is different from the bond under Sec. 14 (proceedings where property
claimed by third person). Sec. 3 refers to the attachment bond to assure the return of defendant’s property or
the payment of damages to the defendant if the plaintiff’s action to recover possession of the same property
fails, in order to protect the person’s right of possession of said property, or to prevent the defendant from
destroying the same during the pendency of the suit. Under Sec. 14, the purpose of the bond is to indemnify
the sheriff against any claim by the intervenor to the property seized or for damages arising from such seizure,
which the sheriff was making and for which the sheriff was directly responsible to the third party (Fort Bonifacio
Development Corporationvs. Yllas Lending Corporation, G.R. No. 158997, October 6, 2008).
No sale of property covered by writ of preliminary attachment before prior judgment; exception
A writ of attachment is a provisional remedy and its issuance does not have the effect of a final judgment
over the property attached. Thus, the property cannot be sold before fiinal judgment. Exception: An attached
property may be sold after levy on attachment and before entry of judgment whenever it shall be made to
appear to the court In which the action is pending, upon hearing with notice to both parties, that the attached
property is perishable or that the interests of all the parties to the action will be subserved by the sale of the
attached property (Sec, 11, Rule 57; China Banking Corporation vs. Asian Corporation and Development
Corporation, G.R. No. 158271, April 8, 2008).
PRELIMINARY INJUNCTION - RULE 58
DEFINITION AND NATURE
 A preliminary injunction is an order granted at any stage of an action prior to judgment of final order, requiring a
party, court, agency, or person to refrain from a particular act or acts. It is a preservative remedy to ensure the
protection of a party’s substantive rights or interests pending the final judgment in the principal action. A plea
for an injunctive writ lies upon the existence of a claimed emergency or extraordinary situation which should be
avoided for otherwise, the outcome of a litigation would be useless as far as the party applying for the writ is
concerned (Phil. Ports Authority v. Cipres Stevedoring & Arrastre, Inc., G.R. No. 145742, July 14, 2005, 463
SCRA 358, 373-374).
 A preliminary injunction is a provisional remedy that a party may resort to in order to preserve and protect
certain rights and interests during the pendency of an action. Its sole objective is to preserve the status quo
until the merits of the case can be heard fully. Status quo is defined as the last actual, peaceful, and
 uncontested status that precedes the actual controversy, that which is existing at the time of the filing of the
case. Indubitably, the trial court must not make use of its injunctive relief to alter such status. (Pineda vs. Court
of Appeals, G.R. No. 181643, November 17, 2010).
 The provisional remedy of preliminary injunction may only be resorted to when there is a pressing necessity to
avoid injurious consequences which cannot be remedied under any standard of compensation.(G.G.
Sportswear Manufacturing Corp. vs. Banco de Oro Unibank, Inc., G.R. No. 184434, February 8, 2010)
 A writ of preliminary injunction, as an ancillary preventive remedy, may only be resorted to by a litigant to
protect or preserve his rights or interest and for no other purpose during the pendency of the principal action
(Allied Domecq Phi., Inc. vs. Villon, G.R. No. 152264, September 30, 2004, 439 SCRA 667).
Distinguished from Prohibition
INJUNCTION PROHIBITION
Generally directed against a party Generally directed against a court, tribunal
or personal exercising judicial powers
Does not involve the jurisdiction of the May be on the ground that court is acting
court without or in excess of jurisdiction
May be the main action or provisional Always a main action
remedy only
Injunction, Preliminary Injunction, and Temporary Restraining Order Distinguished
Injunction is a judicial writ, process or proceeding whereby a party is ordered to do or refrain from
doing a certain act. It may be the main action or merely a provisional remedy for and as an incident in the
main action. The main action for injunction is distinct from the provisional or ancillary remedy of preliminary
injunction which cannot exist except only as part or an incident of an independent action or proceeding. As a
matter of course, in an action for injunction, the auxiliary remedy of preliminary injunction, whether prohibitory
or mandatory, may issue (Bacolod City Water District vs. Labayan, G.R. No. 157494, December 10, 2004, 446
SCRA 110 citing Urbanes Jr. vs. Court of Appeals, G.R. No. 117964, March 28, 2001, 355 SCRA 537).
A preliminary injunction is granted at any stage of an action or proceeding prior to the judgment or
final order. It persists until it is dissolved or until the termination of the action without the court issuing a final
injunction. (Id, citing Miriam College Foundation Inc., vs. Court of Appeals, G.R. No. 127930, December 15,
2000, 348 SCRA 265).
A restraining order, on the other hand, is issued to preserve the status quo until the hearing of the
application for preliminary injunction which cannot be issued ex parte xxx (Id,citing Miriam College Foundation
Inc. vs. Court of Appeals, G.R. No. 127930, December 15, 2000, 348 SCRA 265).
 Under the Rules of Court, probability is enough basis for injunction to issue as a provisional remedy, which
is different from injunction as a main action where one needs to establish absolute certainty as basis for a
final and permanent injunction.(Hernandez vs. NAPOCOR, G.R. No. 145328, March 23, 2006).
 For a writ of preliminary injunction to be issued, the Rules of Court do not require that the act complained of be
in clear violation of the rights of the applicant. Indeed, what the Rules require is that the act complained of
be probably in violation of the rights of the applicant.Under the Rules, probability is enough basis for injunction
to issue as a provisional remedy. (La Campana Development Corporation vs. Court of Appeals, G.R. No.
154152, August 25, 2010, citing City of Naga v. Asuncion G.R. No. 174042, July 9, 2008, 557 SCRA 528)
PURPOSE
1. The purpose of a preliminary injunction is to prevent threatened or continuous irremediable injury to
some of the parties before their claims can be thoroughly studied and adjudicated (Medina vs.
Greenfield Development Corporation, G.R. No. 140228, November 19, 2004, 443 SCRA 150; Light Rail Transit
Authority vs. Court of Appeals, G.R. Nos. 139275-76 and 140949, November 25, 2004, 444 SCRA 125; Sps.
Estares vs. Court of Appeals, G.R. No. 144755, June 8, 2005).
2. Its sole aim is to preserve the status quo until the merits of the case can be heard fully(Cortez-Estrada
vs. Samut,G.R. No. 154407, February 14, 2005). Thus, it will be issued only upon a showing of a clear and
unmistakable right that is violated. Moreover, an urgent and permanent necessity for its issuance must be
shown by the applicant (First Global Realty and Development Corporation vs. San Agustin, G.R. No. 144499,
February 19, 2002, 377 SCRA 341).
3. Meaning of Status Quo
The status quo is the last actual peaceable uncontested status which preceded the controversy (Dolmar
Real Estate Development Corporation, G.R. No. 172990, February 27, 2008; Preysler Jr vs. Court of
Appeals, G.R. No. 158141 July 11, 2006).
Issues on jurisdiction
1. Pursuant to the policy of judicial stability, the judgment or order of a court of competent jurisdiction may not
be interfered with by any court of concurrent jurisdiction (Javier vs. Court of Appeals, February 16, 2004,
423 SCRA 11; See also Chings vs. Court of Appeals, February 24, 2003, 398 SCRA 88).
2. Injunctions issued by the Regional Trial Courts are limited to acts committed or to be committed within its
territorial jurisdiction. The doctrine is, however, limited to prohibitory and injunctive writs.
Section 21 of BP 129 reads: “Original jurisdiction in other cases – Regional Trial Courts shall exercise
original jurisdiction (1) in the issuance of writs of certiorari, prohibition, mandamus, quo warranto, habeas
corpus and injunction which may be enforced in any party of their respective regions.”
3. Judge's authority to issue a writ of preliminary injunction only within his/her territorial jurisdiction
As the presiding judge of RTC, Marawi City, he should have known that Makati City was way beyond
the boundaries of his territorial jurisdiction insofar as enforcing a writ of preliminary injunction is concerned.
Section 21(1) of B.P. Blg. 129, as amended, provides that the RTC shall exercise original jurisdiction in the
issuance of writs of certiorari, prohibition, mandamus, quo warranto, habeas corpus and injunction which may
be enforced in any part of their respective regions (Gomos vs. Adiong, A.M. No. RTJ-04-1863, October 22,
2004, 441 SCRA 162).
4. The authority of a judge to issue a writ of injunction is limited only to and operative onlywithin his province
or district and any such writ issued in contravention of such limitation is void (Dela Paz vs. Adiong, November
23, 2004, 443 SCRA 480).
Original action for injunction outside the jurisdiction of the Court of Appeals
What petitioner filed with the appellate court was an original action for preliminary injunction which is a
provisional and extraordinary remedy calculated to preserve or maintain the status quo of things and is availed
of to prevent actual or threatened acts, until the merits of the case can be heard. An original action for
injunction is outside the jurisdiction of the Court of Appeals, however. Under B.P. 129, the appellate court’s
jurisdiction to grant a writ of preliminary injunction is limited to actions or proceedings pending before
it (Section 2 of Rule 58) or in a petition for certiorari, prohibition or mandamus (Section 7 of Rule 65). In
the case at bar, petitioner’s complaint-in-intervention in Civil Case No. 00-196 was pending before Branch 256
of the Muntinlupa RTC, not with the appellate court. Petitioner’s petition before the appellate court does not
show that in issuing the writ of possession, the Muntinlupa RTC acted without or in excess of its jurisdiction or
with grave abuse of discretion for it to be treated as either one for certiorari or prohibition (Allgemeine-Bau-
Chemie Phils., Inc., vs. Metropolitan Bank & Trust Co., Honorable N. C. Perello, G.R. No. 159296 , February
10, 2006).
Injunction to restrain extrajudicial foreclosure involving several parcels located in different provinces
Separate injunction suits may be filed for breach of mortgage contract with injunction to restrain
extrajudicial foreclosure proceedings of mortgaged properties located in different provinces without violating
the rule against forum shopping since injunction is enforceable only within the territorial limits of the trial court,
thus the mortgagor is left without remedy as to the properties located outside the jurisdiction of the issuing
court unless an application for injunction is made with another court which has jurisdiction over the latter court
(Benguet vs. Management Corporation vs. Court of Appeals, September 18, 2003, 411 SCRA 347).
Authority of any member of the court to issue a TRO
While any member of the Court of Appeals may issue preliminary injunction or TRO, this power is
exercised only in case of extreme urgency and in the tradition of the Supreme Court, the Court en banc or
division ratifies or confirms the act of the single justice at the very next session of the Court (Heirs of the Late
Justice Jose B.L. Reyes vs. Court of Appeals, August 2005, 338 SCRA 282)
Action by a Justice
See: Rule VI, Section 5 of the Internal Rules of the Court of Appeals
Cases where preliminary injunction is prohibited or must be issued with utmost caution and
judiciousness
1. Release of articles under seizure and forfeiture proceedings by the Bureau of Customs (Commissioner of
Customs vs. Court of Appeals, G.R. Nos. 111202-05, January 31, 2006;Zuno vs. Cabredo, A.M. No. RTJ-03-
1779, April 30, 2003; Administrative Circular No. 7-99).
2. Injunction orders in labor cases (Art. 255, Labor Code, as amended by BP 227)
3. Injunction to enjoin or restrain criminal prosecution (Borlongan vs. Pena, G.R. No. 143591, November 23,
2007; Samson vs. Guingona, Jr., G.R. No. 123504, December 14, 2000)
4 . Injunction to prevent the implementation of government infrastructure projects (RA 8935)
 5. Injunction to prevent the foreclosure of real estate mortgages by government financing institutions (OCA
Circular 93-2004 in relation to Sec. 1, Rule 141 of the Rules of Court, Sec. 3, PD 385 and Administrative
Circular No. 07-99)
6. Injunction to prevent the Anti Money Laundering Council from issuing and /or implementing freeze orders,
with the exception of writs issued by the Court of Appeals and the Supreme Court (RA 9160 as amended by
RA 9194)
7. Injunction to restrain the Presidential Agrarian Reform Council from performing its tasks (Sec. 55, RA
6657)
8. Injunction against public administrative officers in the issuance of public grants for the exploitation of
natural resources (PD 605)
ISSUANCE OF PRELIMINARY INJUNCTION
A. Principal action necessary
1. Independent action merely to obtain preliminary injunction not allowed
An independent action cannot be maintained merely to procure preliminary injunction – some
substantive relief must be sought. Preliminary injunction is a mere provisional remedy and adjunct to the main
suit. The dismissal of the principal action thus results in the denial of the prayer for the issuance of the writ
(PNB vs. Ritratto Group, Inc.,July 31, 2001, 362 SCRA 216).
The ancillary and provisional remedy of preliminary injunction cannot exist except only as an incident of an
independent action or proceeding.(BF Homes, Inc. vs. Manila Electric Company, G.R. No. 171624, December
6, 2010)
2. Reason for power of court to issue preliminary injunction
The controlling reason for the existence of the judicial power to issue the writ is that the court may
thereby prevent a threatened or continuous irremediable injury to some of the parties before their claims can
be thoroughly investigated and advisedly adjudicated. It is to be resorted only when there is a pressing
necessity to avoid injurious consequences which cannot be remedied under any standard of compensation
(Development Bank of the Philippines vs. Court of Appeals, October 30, 2000, 344 SCRA 492; See also LRTA
vs. Court of Appeals, G.R. Nos. 139275-76 and 1409949, November 25, 2004; Estares vs. Court of
Appeals, G.R. No. 144755, June 8, 2005).
B. Requisites for issuance of preliminary injunction
a. The right to be protected exists prima facie and
b. The acts sought to be enjoined are violative of that right (Los Baños Rural Bank, Inc. vs. Africa, July 11,
2002, 384 SCRA 535; Zamboanga Barter Goods Retailers Association, Inc. vs. Lobregat, July 7, 2004, 433
SCRA 624; European Resources and Technologies, Inc. vs. Ingenieuburo Birkhahn + Nolte
Ingeniurgesellscahft mbh, July 26, 2004, 435 SCRA 246).
When a writ of preliminary injunction may issue
A writ of preliminary injunction may only be issued upon a clear showing: (1) that there exists a right to be
protected, and (2) that the action sought to be enjoined is violative of that right. In the case at bar, the RTC
found that, in accordance with the MCTC’s findings in Civil Case No. 1243-99 as affirmed by the Court of
Appeals, the Bueno sisters, and not petitioner, were the owners of the structure sought to be demolished.
Clearly, the trial court found that petitioner had no actual right that needs to be protected by a writ of
preliminary injunction (Pasion vs. Melegrito, G.R. No. 16658, March 28, 2007).
Options of respondents in a petition for writ of preliminary injunction
The petitioner adduced his evidence to support his plea for a writ of preliminary injunction. The respondents
then had three options: (a) file a motion to deny/dismiss the motion on the ground that the petitioner failed to
discharge his burden to prove the factual and legal basis for his plea for a writ of preliminary injunction and, if
the trial court denies his motion, for them to adduce evidence in opposition to the petitioner’s plea; (b) forego
their motion and adduce testimonial and/or documentary evidence in opposition to the petitioner’s plea for a
writ of preliminary injunction; or, (c) waive their right to adduce evidence and submit the incident for
consideration on the basis of the pleadings of the parties and the evidence of the petitioner (Tayag vs.
Lacson, G.R. No. 134971 , March 25, 2004, 426 SCRA 282).
C. Issuance of injunctions to be avoided to dispose of merits
The prevailing rule is that courts should avoid issuing a writ of preliminary injunction which would in effect
dispose of the main case without trial (Medina vs. Greenfield Development,G.R. No. 140228, November
19, 2004).
D. Injunctions not issued where act sought to be prevented had been committed / consummated
acts (fait accompli)
1. The remedy of injunction could no longer be availed of where the act to be prevented had long been
consummated. Where a span of seven years has intervened from the time the award of the lot has already
been accomplished to the time petitioners’ complaint for injunction was filed, injunction would just be an
exercise in futility (Zabat vs. CA, August 23, 2000, 338 SCRA 551).
2. A writ of preliminary injunction will not issue if the act sought to be enjoined is a fait accompli or an
accomplished or consummated act (Transfield Philippines, Inc., vs. Luzon Hydro Corporation, November
22, 2004, 443 SCRA 307). By issuing a temporary restraining order and writ of preliminary injunction enjoining
the eviction of the respondents, the Court of Appeals allowed the respondents to stay in the property despite
the mandatory provision of Section 19, Rule 70 of the Rules of Court. The appellate court, in effect, granted
the same injunctive relief which the respondents failed to secure from the Regional Trial Court due to their
procedural lapse (David vs. Navarro, February 11, 2004, 422 SCRA 499).
E. Injunction to stay final and executory decision unavailable; exception
An injunction to stay a final and executory decision is unavailing except only after a showing that facts and
circumstances exist which would render execution unjust or inequitable, or that a change in the situation of the
parties occurred. Here, no such exception exists as shown by the facts earlier narrated. To disturb the final
and executory decision of the ERB in an injunction suit is to brazenly disregard the rule on finality of
judgments (Philippine Sinter Corporation and PHIVIDEC Industrial Authority vs. Cagayan Electric Power and
Light Co., Inc., G.R. No. 127371, 381 SCRA 582, April 25, 2002).
F. There must be showing of irreparable injury
1. A writ of injunction should never issue when an action for damages would adequately compensate
the injuries caused. The very foundation of the jurisdiction to issue the writ of injunction rests in the existence
of a cause of action and in the probability of irreparable injury, inadequacy of pecuniary compensation and the
prevention of multiplicity of suits (PNB vs. RJ Ventures Realty & Development Corporation, September 27,
2006, 503 SCRA 639).
2. While the evidence to be submitted at the hearing on the motions for preliminary injunction need
not be conclusive and complete, there must be a showing, at least tentatively of irreparable injury. As
a preliminary injunction is intended to prevent irreparable injury to the plaintiff, that possibility should be clearly
established, if only provisionally, to justify the restraint of the act complained against. Where no such injury is
shown, the issuance of the preliminary injunction, being utterly without basis, was held to be tainted with grave
abuse of discretion that cannot be corrected by certiorari (Estares vs. Court of Appeals, G.R. No. 144755, June
8, 2005).
3. The Court cannot see how petitioner shall suffer grave and irreparable injury if the monetary awards in
favor of respondents in the Decision of the NLRC are executed. The monetary awards may be collected from
PMPI and any of its remaining assets. It must be emphasized that the NLRC, in its decision, explicitly states
that petitioner is not solidarily liable with PMPI but is liable only in his official capacity. In the event that the
monetary awards are actually executed on petitioner’s properties, and his Petition for Certiorari in CA-G.R. SP
No. 94005 is eventually granted, the damage against petitioner shall not be irreparable for respondents
can simply be ordered to return to petitioner the amounts they received, with interests, if appropriate.
Given the foregoing, the Court of Appeals correctly denied petitioner’s application since there is a marked
absence of any urgent necessity for the issuance of a TRO or writ of preliminary injunction. (Brizuela vs.
Dingle, G.R. No. 175371, April 20, 2008).
4. While merely a sampling of the evidence is required, such evidence must, however, rest on solid
grounds and not on mere hearsay or unfounded fears. The evidence to be submitted to justify preliminary
injunction at the hearing thereon need not be conclusive or complete but need only be a “sampling” intended
merely to give the court an idea of the justification for the preliminary injunction pending the decision of the
case on the merits. Our concern here involves only the propriety of the preliminary injunction and not the merits
of the case still pending with the trial court. A perusal of the records of the case at bar shows, however, that
the trial court, in arriving at its belief that there is need to at least temporarily restrain the defendants just
parroted petitioner’s allegations in his “STATEMENT OF FACTS” in the complaint and in his Affidavit. The
minutes of a purported session do not show that testimonial or documentary evidence was presented during
the session-alleged “summary hearing.” (Matutina vs. PNB, G.R. No. 165570, February 23, 2006).
G. Transfer of Possession
1. General rule: not allowed
a. The rule is predicated on the proposition that the ownership as well as the possession of the (properties) in
dispute are the main issues and that the relief was prayed for before the issue had been decided on the
merits. Before the issue is determined in the light of the evidence presented, justice and equity demand that
the parties be maintained in theirstatus quo so that no advantage may be given to one to the prejudice of the
other. Unless there is a clear pronouncement regarding ownership and possession of the land, or unless the
land is covered by a torrens title pointing to one of the parties as the undisputed owner,a writ of preliminary
injunction should not issue to take (the properties) out of the possession of one party to place it in the
hand of another (Medina vs. Greenfield Dev’tCorporation, G.R. No. 140228, November 19, 2004; See also
Cortez-Estrada vs. Samutm,G.R. No. 154407, February 14, 2005).
b. The respondent is the registered owner of the property; hence, he is entitled to the possession thereof. As a
rule, a writ of preliminary mandatory injunction is not granted to take property out of the possession or control
of one party to be placed into that of another whose title has not been clearly established by law. (Almeida vs.
Court of Appeals, G.R. No. 159124, January 17, 2005, 448 SCRA 681).
2. Exception:
Article 539, Civil Code: A possessor deprived of his possession through forcible entry may within 10 days from
the filing of the complaint present a motion to secure from the competent court, in the action for forcible entry, a
writ of preliminary mandatory injunction to restore him in his possession. The court shall decide the motion
within 30 days from filing thereof.
H. Discretion in issuance of preliminary injunction
1. Strong arm of equity
A preliminary injunction is an extraordinary event calculated to preserve or maintain the status quo of things
ante litem and is generally availed of to prevent actual or threatened acts, until the merits of the case can be
heard. Injunction is accepted as the strong arm of equity or a transcendent remedy. While generally the grant
of a writ of preliminary injunction rests on the sound discretion of the trial court taking cognizance of the
case, extreme caution must be observed. Every court should remember that an injunction is a limitation
upon the freedom of action of the defendant and should not be granted lightly or precipitately. It should be
granted only when the court is fully satisfied that the law permits it and the emergency demands it (Tayag vs.
Lacson, March 25, 2004 426 SCRA 282).
2. Specifying basis of, necesssary
The Court has ruled that the possibility of irreparable damage without proof of actual existing right is not a
ground for an injunction. Where the complainant’s right is doubtful or disputed, injunction is not proper.
Absent a clear legal right, the issuance of the injunctive relief constitutes grave abuse of discretion (Manila
International Airport vs. Court of Appeals, February 14, 2003, 397 SCRA 348,; See also Tayag vs.
Lacson, March 25,2004).
MANDATORY INJUNCTION
Strict requisites for mandatory injunction. Since it commands the performance of an act, a mandatory
injunction does not preserve the status quo and is thus more cautiously regarded than a mere prohibitive
injunction (Gateway Electronics Corporation vs. Land Bank of the Philippines, July 30, 2003, 407 SCRA 454,).
Preliminary injunction granted only when complaint is verified
Rule 58, Section 4 (a) is clear with regard to the procedure to be followed in the issuance of writs of preliminary
injunction, i.e., a preliminary injunction or temporary restraining order may be granted only when the
application in the action or proceeding is verified, and shows facts entitling the applicant to the relief
demanded. A preliminary injunction may be granted only when the complaint is verified. Absence of
verification makes an application or petition for preliminary injunction patently insufficient both in form and
substance (Rivera vs. Mirasol,A.M. No. RTJ-04-1885, July 15, 2004, 434 SCRA 315).
Forum Shopping
Where a party filed complaints in another Regional Trial Court for injunctive relief after another RTC had set
aside the writ of preliminary injunction issued by it, he is guilty of forum shopping (Philippine Commercial
International Bank vs. Court of Appeals, July 17, 2003, 406 SCRA 575).
CHANGE IN THE RULE
The last paragraph which was added to Section 5 states that a higher court (RTC, Court of Appeals,
Sandiganbayan, Court of Tax Appeals) which issues a writ of preliminary injunction against a lower court,
board, officer or quasi-judicial agency must “decide the main case or petition within six (6) months from the
issuance of the writ.” (AM 07-7-12, effective December 27, 2007).
Purpose: in order not to unduly delay the main case lodged in the lower court.
Summary hearing required
Whenever an application for a TRO is filed, the court may act on the application only after all parties have
been notified and heard in a summary hearing. Summary hearing may not be dispensed with. Administrative
 Circular No. 20-95 aims to restrict the ex parte issuance of a TRO only to cases of extreme urgency in order to
avoid grave injustice and irreparable injury (Dela Cruz vs. Villalon-Pornillos, June 8, 2004, 431 SCRA 153).
The order granting a writ of preliminary injunction is an interlocutory order. As such, it cannot by itself be
subject of an appeal or a petition for review on certiorari (Landbank of the Philippines vs. Listana, Sr.,August 5,
2003, 408 SCRA 328).
An injunction duly issued must be obeyed however erroneous the action of the court may be until a higher
court overrules such decision (Rosario Textile Mills, Inc. vs. Court of Appeals, August 25, 2003, 409 SCRA
515).
Limited lifetime of TRO
The TRO issued by the CA has long lapsed, its lifetime under Rule 58 of the Rules of Court being only
60 days. Respondents themselves admit that the CA allowed its TRO to lapse. Because there is nothing that
will now stop the Imus, Cavite RTC from implementing its writ of preliminary injunction against respondents,
there is no need for us to issue any order enjoining respondents from implementing petitioners’ suspension.
This petition, as a result, has become moot and academic. (Yu and Yuhico vs. The Orchard Golf and Country
Club, Inc., G.R. No. 150335, March 1, 2007).
Decision on the merits, effect on writ of preliminary injunction
The propriety of the Order of dismissal of civil case before the RTC should render moot and academic the
petition for review of the Decision of the Court of Appeals. It is well settled that the issue of propriety of
obtaining a preliminary injunction dies with the main case from which it logically sprang. Such a provisional
remedy, like any other interlocutory order, cannot survive the main case of which it is but an incident. Indeed
what more could this Court enjoin when the complaint has already been dismissed? (G & S Transport
Corporation vs. Court Of Appeals, G.R. No. 120287, May 28, 2002).
Actions upon a writ of injunction under court discretion
 The issuance or recall of a preliminary writ of injunction is an interlocutory matter that remains at all times
within the control of the court or quasi-judicial body that issued it. Thus, petitioners could not rightfully claim a
vested right to an injunctive writ (Yu and Yuhico vs. The Orchard Golf and Country Club, Inc. et.al, G.R.
No. 150335, March 1, 2007). The matter of the issuance of a writ of preliminary injunction is addressed to
the sound discretion of the trial court unless the court committed a grave abuse of discretion (Toyota Motors
Phil., Corporation Workers Association (TMPCWA) vs. Court of Appeals,September 24, 2003, 412 SCRA
69; Landbank of the Philippines vs. Continental Watchman Agency, Inc., January 22, 2004, 420 SCRA 624;
Carlos A. Gothong Lines, Inc.vs. Court of Appeals, July 1, 2004, 433 SCRA 348). However, while generally the
grant of a writ of preliminary injunction rests on the sound discretion of the trial court taking cognizance of the
case, extreme caution must be observed in the exercise of such discretion (Tayag vs. Lacson, March 25,
2004, 426 SCRA 282).
 The issuance of any provisional remedy, such as a TRO in the alleged case, is addressed to the sound
discretion of the court upon certain conditions as provided by law that are amply shown by the applicant.
Consequently, undue delay or inaction on an application of a provisional remedy, like a TRO, cannot be
imputed to the judge or court where there is no showing that the grant thereof is proper and well nigh dictated
by an indubitable right of a party-applicant that needs protection. (Re: Letter-Complaint of Atty. Ariel Samson
C. Cayetuna, et al., All Employees of Associate Justice Michael P. Elbinias against Associate Justice Michael
P. Elbinias, CA – Mindanao Station, A.M. OCA IPI No. 08-127-CA-J, January 11, 2011.)
RECEIVERSHIP - RULE 59
Grant of receivership must be with sufficient justification
As early as 1914, the Court already enunciated the doctrinal pronouncement inVelasco & Co. v.
Gochuico & Co. that courts must use utmost circumspection in allowing receivership.
Also, petitioner is willing to post a counterbond in the amount to be fixed by the court based on Sec. 3,
Rule 59 of the 1997 Rules of Civil Procedure. Anchored on this rule, the trial court should have dispensed with
the services of the receiver, more so considering that the alleged fraud put forward to justify the receivership
was not at all established. Lastly, since a notice of lis pendens has been annotated on the titles of the disputed
properties, the rights of petitioners are amply safeguarded and preserved. Hence, there is no need for a
receiver to look after the disputed properties (Vivares and Ignaling vs. Reyes, G.R. No. 155408, February 13,
2008).
Acts prohibited during receivership and liquidation proceedings
While it is true that foreclosure falls within the broad definition of “doing business,” that is:
…a continuity of commercial dealings and arrangements and contemplates to that extent, the performance of
acts or words or the exercise of some of the functions normally incident to and in progressive prosecution of
the purpose and object of its organization.
it should not be considered included, however, in the acts prohibited whenever banks are “prohibited from
doing business” during receivership and liquidation proceedings.
This is consistent with the purpose of receivership proceedings, i.e., to receive collectibles and
preserve the assets of the bank in substitution of its former management, and prevent the dissipation of its
assets to the detriment of the creditors of the bank. In both receivership and liquidation proceedings, the bank
retains its juridical personality notwithstanding the closure of its business and may even be sued as its
corporate existence is assumed by the receiver or liquidator. The receiver or liquidator meanwhile acts not
only for the benefit of the bank, but for its creditors as well (Sps. Larrobis vs. Philippine Veterans Bank, G.R.
No. 135706, October 12, 2004).
Bank bound by the acts, or failure to act of its receiver
Settled is the principle that a bank is bound by the acts, or failure to act of its receiver. As we held in Philippine
Veterans Bank vs. NLRC (G.R. No. 130439, October 26, 1999, 317 SCRA 510) a labor case which also
involved respondent bank,
… all the acts of the receiver and liquidator pertain to petitioner, both having assumed petitioner’s corporate
existence. Petitioner cannot disclaim liability by arguing that the non-payment of MOLINA’s just wages was
committed by the liquidators during the liquidation period.
However, the bank may go after the receiver who is liable to it for any culpable or negligent failure to collect the
assets of such bank and to safeguard its assets (Sps. Larrobis vs. Philippine Veterans Bank, October 12,
2004, G.R. No. 135706 ).
Effect of receivership on loans
In Banco Filipino Savings and Mortgage Bank v. Monetary Board (G.R. No. 70054, December 11,
1991, 204 SCRA 767, 789), the validity of the closure and receivership of Banco Filipino was put in issue. But
the pendency of the case did not diminish the authority of the designated liquidator to administer and continue
the bank’s transactions. The Court allowed the bank’s liquidator to continue receiving collectibles and
receivables or paying off creditor’s claims and other transactions pertaining to normal operations of a bank.
Among these transactions were the prosecution of suits against debtors for collection and for foreclosure of
mortgages. The bank was allowed to collect interests on its loans while under liquidation, provided that the
interests were legal (Banco Filipino Savings and Mortgage Bank vs. Ybañez, G.R. No. 148163, December 6,
2004).
Power to contract limited during receivership
In all, respondent bank’s receiver was without any power to approve or ratify the “exclusive option to
purchase” granted by the late Vicente G. Puyat, who, in the first place, was himself bereft of any authority, to
bind the bank under such exclusive option. Respondent Manila Bank may not thus be compelled to sell the
land and building in question to petitioner Abacus under the terms of the latter’s “exclusive option to
purchase”.(Abacus Real Estate Development Center, Inc., vs. The Manila Banking Corporation, G.R. No.
162270 , 2005 April 6, 2005).
Obligation to pay interest subsists even under receivership
When a bank is placed under receivership, it would only not be able to do new business, that is, to
grant new loans or to accept new deposits. However, the receiver of the bank is in fact obliged to collect debts
owing to the bank, which debts form part of the assets of the bank. Thus, petitioners’ obligation to pay interest
subsists even when respondent was placed under receivership. The respondent’s receivership is an
extraneous circumstance and has no effect on petitioners’ obligation (Sps Aguilar vs. The Manila Banking
Corporation, G.R. No. 157911, September 19, 2006).
To institute action: a general power of a receiver
One of the general powers of a receiver under Rule 59, Section 6 of the Rules of Court is the power to
bring and defend suits in such capacity. Petitioner also contends that an action filed by a successor-receiver
against him as predecessor-receiver is not allowed under Rule 59, Section 6 without leave of court which
appointed him; as Section 6 provides that “no action may be filed by or against a receiver without leave of the
court which appointed him.” This is bereft of merit. The rule talks of the current receiver of the company and
not the previous receiver like petitioner Orendain. The reason behind Rule 59, Section 6, which requires leave
of court for all suits by or against the present receiver, is to forestall any undue interference with the receiver’s
performance of duties through improvident suits. Apparently, such situation cannot apply to Orendain who is no
longer BF Homes’ receiver (Orendain vs. BF Homes, Inc., G.R. No. 146313, October 31, 2006).
Receivership is an auxiliary remedy
Receivership is not an action. It is but an auxiliary remedy, a mere incident of the suit to help achieve
its purpose. Consequently, it cannot be said that the grant of receivership in one case will amount to res
judicata on the merits of the other cases. The grant or denial of this provisional remedy will still depend on the
need for it in the particular action (Chavez vs. Court of Appeals, G.R. No. 174356, January 20, 2010)
REPLEVIN - RULE 60
Replevin is an action whereby the owner or person entitled to repossession of goods or chattels may
recover those goods or chattels from one who has wrongfully distrained or taken, or who wrongfully detains
such goods or chattels. It is designed to permit one having right to possession to recover property in specie
from one who has wrongfully taken or detained the property. The term may refer either to the action itself, for
the recovery of personalty, or to the provisional remedy traditionally associated with it, by which possession
of the property may be obtained by the plaintiff and retained during the pendency of the action
Facts that must be alleged in the application for replevin
An application for replevin must show that the property is not --
1. distrained,
2. taken for a tax assessment or a fine pursuant to law,
3. seized under a writ of execution or preliminary attachment, or
4. placed under custodia legis
(Vda. De Danao vs. Ginete, January 21, 2003, 395 SCRA 542).
Preliminary Attachment Replevin
Available even if recovery of personal Available only if principal relief sought is
property is only incidental relief in the action recovery of personal property; Relief for
damages are only incidental
Can be resorted to even if personal property Can be sought only where defendant is in
is in the custody of a third person actual or constructive possession of the
personality involved
Extends to all kinds of property Extends only to personal property capable
of manual delivery
To recover possession of personal property To recover personal property even if it is
unjustly detained; Presupposes that it is not being concealed, removed, or
being concealed, removed, or disposed to disposed of
prevent its being found or taken by the
applicant
Can be resorted to even if property is in Cannot be availed of if property is under
custodia legis custodia legis
The RTC had no jurisdiction to take cognizance of the petition for replevin by respondents herein,
issue the writ of replevin and order its enforcement. The Collector of Customs had already seized the
vehicles and set the sale thereof at public auction. The RTC should have dismissed the petition for replevin at
the outset. By granting the plea of respondents (plaintiffs below) for the seizure of the vehicles and the transfer
of custody to the court, the RTC acted without jurisdiction over the action and the vehicles subject matter
thereof. The forfeiture of seized goods in the Bureau of Customs is a proceeding against the goods and not
against the owner. It is in the nature of a proceeding in rem, i.e., directed against the res or imported articles
and entails a determination of the legality of their importation. In this proceeding, it is, in legal contemplation,
the property itself which commits the violation and is treated as the offender, without reference whatsoever to
the character or conduct of the owner (Asian Terminals, Inc. vs. Bautista-Ricafort, G.R. No. 166901, October
27, 2006).
Remedy of defendant in a replevin suit
If a defendant in a replevin action wishes to have the property taken by the sheriff restored to him, he should
within five days from such taking, (1) post a counter-bond in double the value of said property, and (2) serve
plaintiff with a copy thereof, both requirements — as well as compliance therewith within the five-day period
mentioned — being mandatory. Conformably, a defendant in a replevin suit may demand the return of
possession of the property replevined by filing a redelivery bond executed to the plaintiff in double the value of
the property as stated in the plaintiff’s affidavit within the period specified in Sections 5 and 6 (Spouses
Bautista vs. Sula, A.M. No. P-04-1920, August 17, 2007).
Action for recovery of car a civil, not labor dispute
 In reversing the RTC ruling and consequently dismissing the replevin case for lack of jurisdiction, the
CA held: We find that the car plan privilege is a benefit arising out of employer-employee relationship, Astorga
being district sales manager of SMART.. Thus, the claim for such falls squarely within the original and
exclusive jurisdiction of the labor arbiters and the NLRC.”
We do not agree. The RTC rightfully assumed jurisdiction over the suit and acted well within its
discretion in denying Astorga’s motion to dismiss. SMART’s demand for payment of the market value of the
car or, in the alternative, the surrender of the car, is not a labor, but a civil, dispute. It involves the relationship
of debtor and creditor rather than employee-employer relations. As such, the dispute falls within the jurisdiction
of the regular courts. (Smart Communications, Inc. vs. Astorga, G.R. No. 148132, January 28, 2008).
SUPPORT PENDENTE LITE - RULE 61
Who are Obliged to Give Support
1. Under Article 199 of the Family Code, respondent Francisco, as the next immediate relative of Rica
and Rina, is tasked to give support to his granddaughters in default of their parents.
2. The applicable provision is Article 204 of the Family Code. Thus, Francisco may give the
determined amount of support to the twins or he may allow them to stay in the family dwelling
(Philippines). The second option cannot be availed of in case there are circumstances, legal or moral,
which should be considered. With the filing of this case, and the allegations hurled at one another by
the parties, the relationships among the parties had certainly been affected.
3. Finally, as to the amount of support pendente lite, the amount of support to be proportionate to the
resources or means of the giver and to the necessities of the recipient. We hold respondent Francisco
liable for half of the amount of school expenses incurred by Rica and Rina as support pendente lite.
As established by petitioner, respondent Francisco has the financial resources to pay this amount.
Considering, however, that the twin sisters may have already been done with their education by the
time of the promulgation of this decision, we deem it proper to award support pendente lite in
arrears. (Mangonon vs. Court of Appeals, G.R. No. 125041, June 30, 2006).
Courts need not delve fully into the merits of the case before it can settle an application for this relief
Under this provision, a court may temporarily grant support pendente lite prior to the rendition of judgment or
final order. All that a court is tasked to do is determine the kind and amount of evidence which may suffice to
enable it to justly resolve the application. It is enough that the facts be established by affidavits or other
documentary evidence appearing in the record (Mangonon vs. Court of Appeals, G.R. No. 125041, June 30,
2006).
In determining the amount of support to be awarded, such amount should be in proportion to the
resources or means of the giver and the necessities of the recipient, pursuant to Articles 194, 201 and
202 of the Family Code.
It is incumbent upon the trial court to base its award of support on the evidence presented before it. The
evidence must prove the capacity or resources of both parents who are jointly obliged to support their children
as provided for under Article 195 of the Family Code; and the monthly expenses incurred for the sustenance,
dwelling, clothing, medical attendance, education and transportation of the child (Lam vs. Chua, G.R. No.
131286, March 18, 2004, 426 SCRA 29).
Amount of support never permanent
There is no merit to the claim of Jose that the compromise agreement between him and Adriana, as
approved by the Makati RTC in the case for voluntary dissolution of conjugal partnership of gains, is a bar to
any further award of support in favor of their child John Paul. The provision for a common fund for the benefit
of their child John Paul, as embodied in the compromise agreement between herein parties which had been
approved by the Makati RTC, cannot be considered final and res judicata since any judgment for support is
always subject to modification, depending upon the needs of the child and the capabilities of the parents to
give support (Lam vs. Chua, G.R. No. 131286, March 18, 2004).
Judgments in actions for support immediately executory
Section 4, Rule 39, of the Rules of Court clearly states that, unless ordered by the trial court, judgments in
actions for support are immediately executory and cannot be stayed by an appeal. This is an exception to the
general rule which provides that the taking of an appeal stays the execution of the judgment and that advance
executions will only be allowed if there are urgent reasons therefor. The aforesaid provision peremptorily calls
for immediate execution of all judgments for support and makes no distinction between those which are the
subject of an appeal and those which are not.
In all cases involving a child, his interest and welfare are always the paramount concerns. There may be
instances where, in view of the poverty of the child, it would be a travesty of justice to refuse him support until
the decision of the trial court attains finality while time continues to slip away. (Gan vs. Reyes, G.R. No.
145527, May 28, 2002).
SPECIAL CIVIL ACTIONS
PETITION FOR CERTIORARI – Rule 65
 How taken and time for filing (Secs. 1 & 4).
Verified petition within 60 days from notice of judgment, order or resolution, or order denying motion for new
trial or reconsideration. Period now inextendible. – last paragraph of Section 4: “No extension of time to file
the petition shall be granted except for compelling reasons and in no case exceeding fifteen (15) days” has
been DELETED by A.M. No. 07-7-12-SC, effective December 27, 2007.
Hence, petitions for certiorari must be filed strictly within 60 days from notice of judgment or from
the order denying a motion for reconsideration.
A. M. No. 07-7-12 has also amended the second paragraph of Sec. 4:
If the petition relates to an act or omission of a municipal trial courtor of a corporation,
board, officer or person, it shall be filed with the Regional Trial Court exercising jurisdiction over the territorial
area as defined by the Supreme Court. It may also be filed with the Court of Appeals whether or not the same
is in aid of its appellate jurisdiction, or with the Sandiganbayan if it is in aid of its appellate jurisdiction. If the
petition involves an act or omission of a quasi-judicial agency, unless otherwise provided by law or these
rules, the petition shall be filed with and be cognizable only by the Court of Appeals.
In election cases involving an act or omission of a municipal or regional trial
court, the petition shall be filed exclusively with the Commission on Elections, in aid of its appellate
jurisdiction
Following the hierarchy of courts, no certiorari against the RTC shall be filed with the Supreme Court. This
will help prevent the clogging of the Supreme Court’s dockets as litigants will be discouraged from filing
petitions directly with the Supreme Court.
For election cases involving acts or omissions of a municipal or regional trial court, the petition
shall be filed exclusively with the Comelec as ruled by the Supreme Court in Relampagos vs. Comelec (243
SCRA 690, April 27, 1995).
Section 7. Expediting proceedings; injunctive relief. - The court in which the petition is filed
may issue orders expediting the proceedings, and it may also grant a temporary restraining order or a writ of
preliminary injunction for the preservation of the rights of the parties pending such proceedings. The petition
shall not interrupt the course of the principal case unless a temporary restraining order or a writ of preliminary
injunction has been issued against the public respondent from further proceeding in the case.
The public respondent shall proceed with the principal case within ten (10) days from the filing of a
petition for certiorari with a higher court or tribunal, absent a temporary restraining order or a
preliminary injunction, or upon its expiration. Failure of the public respondent to proceed with the
principal case may be a ground for an administrative charge
Unless there is a temporary restraining order or preliminary injunction issued by a higher court,
the main or principal case should proceed despite the filing of a petition for certiorari questioning an act or
omission of a court or tribunal
Judicial courtesy, therefore, can no longer be used as an excuse by courts or tribunals not to
proceed with the principal case.
Section 8. Proceedings after comment is filed. - x x x However, the court may dismiss the petition if it
finds the same patently without merit or prosecuted manifestly for delay, or if the questions raised therein are
too unsubstantial to require consideration. In such event, the court may award in favor of the respondent
treble costs solidarily against the petitioner and counsel, in addition to subjecting counsel to
administrative sanctions under Rules 139 and 139-B of the Rules of Court.
The Court may impose motu proprio, based on rep ipsa loquitur,other disciplinary
sanctions or measures on erring lawyers for patently dilatory and unmeritorious petitions for certiorari.
The amendment seeks to discourage litigants and their counsel from filing baseless petitions for
.
certiorari
 Three (3) essential dates that must be stated in a petition for certiorari – (a) the date when notice of the
judgment, final order or resolution was received, (b) when a motion for new trial or reconsideration was filed,
and (c) when notice of the denial thereof was received (Seastar Marine Services, Inc. vs. Bul-an, 444 SCRA
140 [2004]).
 Late filing of petition for certiorari – for being filed one day late, the Court of Appeals dismissed
petition for certiorari of NLRC decision. The Supreme Court upheld the dismissal. Deviations from the rule
cannot be tolerated. Its observance cannot be left to the whims and caprices of the parties (LTS Philippines
Corp. vs. Maliwat, 44 8 SCRA 254 [2005]).
 Documents to accompany petition: (a) certified true copy of the judgment, order or resolution subject of
the petition. (b) copies of all relevant pleadings and documents and (c) sworn certification of non-forum
shopping (Caingat vs. NLRC, G.R. No. 154308, March 10, 2005). The requirement for certified true copies
refers to the judgment, order or resolution (Air Philippines vs. Zamora, G.R. No. 148247, August 7,
2006). The use of mere photocopies of certified true copies of judgments or orders subject matter of a petition
renders that petition deficient and subject to dismissal (Pinamakasarap Corporation vs. NLRC, G.R. No.
155058, September 26, 2006).
 SC, CA and RTC have concurrent jurisdiction
 Petition for certiorari to annul RTC orders filed with the SC should be dismissed. It should have been filed
with the CA, following the principle of hierarchy of courts (De los Reyes vs. People, 480 SCRA 294 [ 2006]).
 If aggrieved, even a non-party may institute a petition for certiorari (Chua vs. CA, 443 SCRA 259 [2004]).
 Petitions for certiorari, prohibition and mandamus are not available under the Rule on Summary Procedure
(Sec. 19), in a petition for a writ of amparo (Sec. 19, Rule on the Writ of Amparo), and in a petition for a writ of
habeas data (Sec. 19, Rule on the Writ of Habeas Data), It is also not available in small claims cases (Sec. 14
(g). A.M. No. 08-8-7-SC).
 If involving acts or omissions of a quasi-judicial agency, petition filed in CA (Sec. 4).
 Directed against a tribunal, board or officer exercising judicial or quasi-judicial functions.
 Not available as a remedy for the correction of the acts performed by a sheriff during the execution process,
which acts are neither judicial nor quasi-judicial but are purely ministerial functions. Prohibition is the proper
remedy (Pamana, Inc. vs. CA, 460 SCRA 133 [2005]).
 Where the function is merely investigative and recommendatory with no power to pronounce judgment on
the controversy, it does not involve the exercise of judicial or quasi-judicial power. Hence, the acts may not be
challenged in a petition for certiorari (Doran vs. Luczon, G.R.No. 151344, September 26, 2006).
 A petition for certiorari must be based on jurisdictional grounds because as long as the respondent acted
with jurisdiction, any error commited by him or it in the exercise thereof will amount to nothing than an error of
judgment which may be reviewed by or corrected by appeal (Estrera vs. CA, G.R. No. 154235, August 16,
2006).
 Since the issue is jurisdiction, an original action for certiorari may be directed against an interlocutory order
of the lower court prior to an appeal from the judgment (New Frontier Sugar Corporation vs. RTC of Iloilo, G.R.
No. 165001, January 31, 2007).
 Ground: grave abuse of discretion, etc.
 Denial of motion to dismiss or to quash, being interlocutory, cannot be questioned by certiorari; it cannot be
subject of appeal, until final order or judgment is rendered. Exceptions (when recourse to certiorari or
mandamus appropriate): (a) when trial court issued the order without or excess of jurisdiction; (b) when there is
patent grave abuse of discretion by the trial court; or (c) when appeal would not prove to be a speedy and
adequate remedy as when an appeal would not promptly relieve defendants from the injurious effects of the
patently mistaken order (DBP vs. La Campana Development Corp.,448 SCRA 384 [2005]).
 A mere denial of an application for an ex parte order for the seizure of evidence is not indicative of grave
abuse of discretion where petitioner failed to point out specific instances where grave abuse of discretion was
allegedly commmitted and how the respondent court
supposedly exercised its power in a despotic, capricious or whimsical manner
(Microsoft Corporation vs. Best Deal Computer
 Center Corporation, 389 SCRA 615 [2002]).
 A judge gravely abuses his discretion when he extends by twenty (20) days the 72-hour restraining order
he initially issued because In no case shall the total period of effectivity of the temporary restraining order
exceed 20 days (Beso vs. Aballe, 326 SCRA 100 [2000]).
 There is grave abuse of discretion where the trial court fails to determine a factual controversy before
issuing a writ of demolition. Failure to do so is to disregard basic principles of due process because before
demolition could be effected, the parties concerned must be heard ( Bermudez vs.Gonzales, 347 SCRA 611
[2000]).
 No appeal or any plain, speedy and adequate remedy.
 Under the 2000 National Prosecution Service Rules on Appeal, the resolution of the Secretary of Justice
affirming, modifying or reversing the resolution of the Investigating Prosecutor is final. The remedy of the
aggrieved party is to file a petition for certiorari with the Court of Appeals since there is no more appeal or other
remedy available in the ordinary course of law. To file an appeal with the Court of Appeals under Rule 43 is an
improper remedy (Alcaraz. vs. Gonzales. G.R. No. 164715, September 26, 2006).
 The CA is empowered under its certiorari jurisdiction to annul and declare void the questioned resolutions
of the Secretary of Justice, but only on two grounds – lack of jurisdiction and grave abuse of discretion
amounting to lack of jurisdiction. The power to reverse and set aside partakes of an appellate jurisdiction which
the CA does not have over judgments of the Secretary of Justice exercising quasi-judicial functions (Buan vs.
Matugas, G.R. No. 161179, August 7, 2007 ).
 A judgment or final order of the Court of Appeals on the petition for certiorari against the Secretary of
Justice is reviewable by the Supreme Court by a petition for review under Rule 45, not the original action for
certiorari under Rule 65. It is elementary that a writ of certiorari under Rule 65 where the remedy of appeal (like
Rule 45) is available precludes certiorari(Spouses Balanguan vs. CA, G. R. No. 174350, August 13, 2008).
 Generally, if appeal is available, certiorari cannot be resorted to. Appeal and certiorari mutually exclusive
and not alternative or successive.
 Certiorari filed instead of appeal during period of appeal did not toll period or prevent judgment from
becoming final (Del Rosario vs. Galagot, 166 SCRA 429).
 Certiorari not substitute for lost appeal. Existence and availability of the right to appeal prohibits the resort to
certiorari even if the error ascribed to the court is lack or excess of jurisdiction or grave abuse of discretion in
the findings of fact or law set out in the decision (Bugarin vs. Palisoc, G.R. No. 157985, December 2, 2005,476
SCRA 587).
 If remedy of appeal lost due to petitioner’s neglect or error in choice of remedies, certiorari not substitute or
tool to shield petitioner from adverse effects (Professional Regulations Commission vs. CA, 292 SCRA 155).
Exceptions:
 When public welfare and advancement of public policy dictate.
 When broader interest of justice so requires.
 When writs issued are null and void.
 When questioned order amounts to an oppressive exercise of judicial authority.
 Where appeal is not adequate, speedy and effective.
In any such instances, special civil action of certiorari may be availed of
- even during the pendency of the case or even after judgment, or
- even when appeal has been availed of
 Availability of appeal does not foreclose recourse to certiorari where appeal not adequate, or equally
beneficial, speedy and sufficient (PNB vs. Sayoc, 292 SCRA 365).
 Rule may be relaxed when rigid application will result in manifest failure or miscarriage of justice (Mejares
vs. Reyes, 254 SCRA 425).
 Where remedies not incompatible, filing of certiorari not abandonment of
appeal. Appeal is from decision in main case while certiorari is against order denying motion for new
trial (Lansang, Jr. vs. CA, 184 SCRA 230; St. Peter Memorial Park vs. Campos, 63 SCRA 180).
 An appeal from a judgment does not bar a certiorari petition against the order granting execution pending
appeal and the issuance of the writ of execution (Mañacop vs. Equitable PCIBank, 468 SCRA 256).
 However, a party is not allowed to question a decision on the merits and also invoke certiorari. Filing of a
petition for certiorari under Rule 65 and ordinary appeal under Rule 41 cannot be allowed because one
remedy would necessarily cancel each other (Id.).
 It is the danger of failure of justice without the writ, not the mere absence of all legal remedies, that must
determine the propriety of certiorari (Seven Brothers Shipping Corp. vs. CA, 246 SCRA 33 [1995]).
 In many instances, the Supreme Court has treated a petition for review under Rule 45 as a petition for
certiorari under Rule 65, where the subject of the recourse was one of jurisdiction, or the act complained of
was perpetrated by a court with grave abuse or discretion amounting to lack or excess of jurisdiction but when
the petition denominated as a Rule 45 petition neither involves any issue of jurisdiction nor a grave abuse of
discretion on the part of the Court of Appeals, it should be dismissed outright (China Banking Corporation vs.
Asian Construction and Development Corporation, G.R. No. 158271, April 8, 2008).
 Motion for reconsideration required before certiorari can be filed.. Exceptions (Miguel vs. JCT Group, Inc.,
458 SCRA 529 [2005]; Tan, Jr. vs. Sandiganbayan, 292 SCRA 452; Marawi Marantao General Hospital vs.
CA, 349 SCRA 321).
 Although the RTC has the authority to annul final judgments, such authority pertains only to final
judgments rendered by inferior courts and quasi-judicial bodies of equal ranking with such inferior
courts. Given that DARAB decisions are appealable to the CA, the inevitable conclusion is that the DARAB is
a co-equal body with the RTC and its decisions are beyond the RTC’s control (Springfield Development Corp.
vs. Presiding Judge of RTC of Misamis Oriental, Branch 40, G.R. No. 142628, February 6, 2007).
 Rule 43 refers to appeals from judgments or orders of quasi-judicial agencies in the exercise of their quasi-
judicial functions. On the other hand, Rule 65 of the Rules of Court specifically governs special civil actions for
certiorari, Section 4 of which provides that if the petition involves acts or omissions of a quasi-judicial agency,
and unless otherwise provided by law or the rules, the petition shall be filed in and cognizable only by the
CA. (Public Hearing Committee of the Laguna Lake Development Authority vs. SM Prime Holdings, Inc., G.R.
No. 170599, September 22, 2010)
PROHIBITION
The writ of prohibition does not lie against the exercise of a quasi-legislative function. Since in issuing
the questioned IRR of R.A. No. 9207, the National Government Administration
Committee was not exercising judicial, quasi-judicial or ministerial function, which is the scope of a petition
for prohibition under Section 2, Rule 65 of the 1997 Rules of Civil Procedure, the instant prohibition should be
dismissed outright. Where the principal relief sought is to invalidate an IRR, petitioners’ remedy is an ordinary
action for its nullification, an action which properly falls under the jurisdiction of the Regional Trial Court. (Holy
Spirit Homeowners Association vs. Defensor, G.R. No. 163980, August 3, 2006).
As a rule, the writ of prohibition will not lie to enjoin acts already done. However, as an exception to the rule on
mootness, courts will decide a question otherwise moot if it is capable of repetition yet evading review (Funa vs.
Executive Secretary Eduardo R. Erminta, G.R. No. 184740, 2010 February 11, 2010).
MANDAMUS
A writ of mandamus commanding the respondents to require PUVs to use CNG is unavailing. Mandamus is
available only to compel the doing of an act specifically enjoined by law as a duty. Here, there is no law
that mandates the respondents LTFRB and the DOTC to order owners of motor vehicles to use CNG. At most
the LTFRB has been tasked by E.O. No. 290 in par. 4.5 (ii), Section 4 “to grant preferential and exclusive
Certificates of Public Convenience (CPC) or franchises to operators of NGVs based on the results of the DOTC
surveys” (Henares, Jr. vs. Land Transportation Franchising and Regulatory Board, G.R. No. 158290, October
23, 2006
Mandamus applies as a remedy only where petitioner’s right is founded clearly in law and not when it
is doubtful.The writ will not be granted where its issuance would be unavailing, nugatory, or useless. If the
law imposes a duty upon a public officer and gives him the right to decide how or when the duty shall be
performed, such duty is discretionary and not ministerial.
There is no doubt that under E.O. No. 826, Administrative Order No. 003, Series of 1981, and
Administrative Order No. 002, Series of 1991, petitioner is vested with discretion on whether or not to grant an
application for the establishment of a new plant, the expansion of capacity, the relocation or upgrading of
efficiencies of such desiccated coconut processing plant. Relative to the renewal of a certificate of registration,
petitioner may refuse a registration unless the applicant has complied with the procedural and substantive
requirements for renewal. However, once the requirements are complied with, the renewal of registration
becomes a ministerial function of petitioner.(Philippine Coconut Authority vs. Primex Coco Products, Inc., G.R.
No. 163088, July 20, 2006 )
 For a writ of mandamus to issue, the applicant must have a well-defined, clear, and certain legal right to
the thing demanded. The corresponding duty of the respondent to perform the required act must be equally
clear. No such clarity exists here; neither does petitioner’s right to demand a revision of her examination
results. And despite petitioner’s assertions that she has not made any demand for re-correction, the most
cursory perusal of her Second Amended Petition and her prayer that the respondents “make the appropriate
revisions on the results of her examination” belies this claim. (Antolin vs. Domondon, G.R. No. 165036, July 5,
2010)
A writ of mandamus lies to compel a judge to issue a writ of execution when the judgment had already
become final and executory and the prevailing party is entitled to the same as a matter of right (FGU
Insurance Corp. vs. Regional Trial Court of Makati City, G.R. No. 161282, 2011 February 23, 2011).
The duty being enjoined in mandamus must be one according to the terms defined in the law itself. Thus,
the recognized rule is that, in the performance of an official duty or act involving discretion, the corresponding
official can only be directed by mandamus to act, but not to act one way or the other. This is the end of any
participation by the Court, if it is authorized to participate at all.(Metropolitan Manila Development Authority vs.
Concerned Residents Of Manila Bay, G.R. Nos. 171947-48, 2011 February 15, 2011)
Established is the procedural law precept that a writ of mandamus generally lies to compel the performance
of a ministerial duty, but not the performance of an official act or duty which necessarily involves the exercise
of judgment. Thus, when the act sought to be performed involves the exercise of discretion, the respondent
may only be directed by mandamus to act but not to act in one way or the other. It is, nonetheless, also
available to compel action, when refused, in matters involving judgment and discretion, but not to direct the
exercise of judgment in a particular manner. However, this rule admits of exceptions. Mandamus is the proper
remedy in cases where there is gross abuse of discretion, manifest injustice, or palpable excess of
authority. (Froilan Dejuras vs. Villa, G.R. No. 173428, November 22, 2010)
INTERPLEADER - Rule 62
Are petitioners entitled to a writ of possession after being adjudged (in the interpleader case) as the proper
parties to buy the subject property, considering that a “deed of sale” has already been executed in their favor?
No. A writ of possession shall issue only in the following instances: (1) land registration proceedings; (2)
extrajudicial foreclosure of mortgage of real property; (3) judicial foreclosure of property provided that the
mortgagor has possession and no third party has intervened, and (4) execution sales. Here, petitioners seek
the writ as a consequence of the trial court’s decision ordering the execution of a contract of sale/contract to
sell in their favor. The writ does not lie in such a case. It was clear that, at that point, petitioners were not yet
the owners of the property. The execution of the “deed of sale” in their favor was only preliminary to their
eventual acquisition of the property. (Maglente vs. Padilla, G.R. No. 148182, March 7, 2007)
Petitioners did not pay rentals because ostensibly they did not know to whom payment should be made.
However, this did not justify their failure to pay, because if such were the case, they were not without any
remedy. They should have availed of the provisions of the Civil Code of the Philippines on the consignation of
payment and of the Rules of Court oninterpleader. An action for interpleader is proper when the lessee does
not know to whom payment of rentals should be made due to conflicting claims on the property (or on the right
to collect). The remedy is afforded not to protect a person against double liability but to protect him against
double vexation in respect of one liability. Notably, instead of availing of the above remedies, petitioners opted
to refrain from making payments. (Pasricha vs. Don Luis Dison Realty, Inc., G.R. No. 136409, March 14, 2008)
DECLARATORY RELIEF - Rule 63
Rule 63 covers two types of actions: (a) petition for declaratory relief, and (b) similar remedies. The similar
remedies are: (a) action for reformation of instrument; (b) action to quiet title; and (c) action to consolidate
ownership under Art; 1607 of the Civil Code.
Jurisdiction
A petition for declaratory relief should be brought “in the appropriate regional trial court.” The purpose of
the petition is to ask the court to determine any question of construction or validity arising from the sujbect
matter thereof , and for the declaration of rights and duties thereunder. Hence, the subject matter of such
petition raises issues which are not capable of pecuniary estimation and must be filed in the RTC (Sec. 19 [1],
BP 129; Sec. 1, Rule 63). It would be error to file the petition the petition with the Supreme Court which has
no original jurisdiction to entertain a petition for declaratory relief (Ortega vs. Quezon City Government, G.R.
No. 161400, September 2, 2005).
However, where the action is for quieting of title which is a similar remedy under the second paragraph of
Sec. 1 of Rule 63, the jurisdiction will depend upon the assessed value of the property.
 Petitioners' contention that this case is one that is incapable of pecuniary estimation under the exclusive
original jurisdiction of the RTC pursuant to Section 19(1) of B.P. 129 is erroneous. Actions for reconveyance
of or for cancellation of title to or to quiet title over real property are actions that fall under the
classification of cases that involve "title to, or possession of, real property, or any interest therein."
Section 19(2) of B.P. 129, as amended by R.A. No. 7691, is clear that the RTC shall exercise jurisdiction "in
all civil actions which involve the title to, or possession of, real property, or any interest therein, where the
assessed value of the property involved exceeds Twenty thousand pesos (P20,000.00) or for civil actions in
Metro Manila, where such value exceeds Fifty thousand pesos (P50,000.00)." The law is emphatic that in
determining which court has jurisdiction, it is only the assessed value of the realty involved that
should be computed. In this case, there is no dispute that the assessed values of the subject properties as
shown by their tax declarations are less than P20,000.00. Clearly, jurisdiction over the instant cases belongs
not to the RTC but to the MTC. (Concha, Sr. vs. Lumocso, G.R. No. 158121, December 12, 2007).
Under Section 1, Rule 63, a person must file a petition for declaratory relief before breach or violation
of a deed, will, contract, other written instrument, statute, executive order, regulation, ordinance or any
other governmental regulation. Petitioners’ actual suspension of payments defeated the purpose of the
action to secure an authoritative declaration of their supposed right to suspend payment, for their
guidance. The purpose of the action is to secure an authoritative statement of the rights and obligations of the
parties under a statute, deed, contract, etc., for their guidance in its enforcement or compliance and not to
settle issues arising from its alleged breach. Where the law or contract has already been contravened
prior to the filing of an action for declaratory relief, the court can no longer assume jurisdiction over
the action. Under such circumstances, inasmuch as a cause of action has already accrued in favor of one or
the other party, there is nothing more for the court to explain or clarify, short of a judgment or final order
(Martelino vs. National Home Mortgage Finance Corporation, G.R. No. 160208, June 30, 2008 )
Gov. Garcia’s petition for declaratory relief should have been dismissed because it was instituted after the
COA had already found her in violation of Sec. 22(c) of R.A. No. 7160. One of the important requirements
for a petition for declaratory relief under Sec. 1, Rule 63 of the Rules of Court is that it be filed before breach
or violation of a deed, will, contract, other written instrument, statute, executive order, regulation, ordinance or
any other governmental regulation. Thus, the trial court erred in assuming jurisdiction over the action despite
the fact that the subject thereof had already been breached by Gov. Garcia prior to the filing of the action.
Nonetheless, the conversion of the petition into an ordinary civil action is warranted under Sec. 6, Rule 63 of
the Rules of Court. (Quisumbing vs. Garcia, G.R. No. 175527, December 8, 2008 En Banc)
The requisites of an action for declaratory relief are: 1] the subject matter of the controversy must be a
deed, will, contract or other written instrument, statute, executive order or regulation, or ordinance; 2] the
terms of said documents and the validity thereof are doubtful and require judicial construction; 3] there must
have been no breach of the documents in question; 4] there must be an actual justiciable controversy or the
“ripening seeds” of one between persons whose interests are adverse; 5] the issue must be ripe for judicial
determination; and 6] adequate relief is not available through other means or other forms of action or
proceeding. (Ferrer vs. Roco, G.R. No. 174129, July 5, 2010)
There is a marked difference between the reliefs sought under an action for declaratory relief and an action
for injunction. While an action for declaratory relief seeks a declaration of rights or duties, or the determination
of any question or validity arising under a statute, executive order or regulation, ordinance, or any other
governmental regulation, or under a deed, will, contract or other written instrument, under which his rights are
affected, and before breach or violation, an action for injunction ultimately seeks to enjoin or to compel a party
to perform certain acts. [Philippine Deposit Insurance Corporation (PDIC) vs. Philippine Countryside Rural
Bank, Inc., G.R. No. 176438, January 24, 2011)
The concept of a cause of action in ordinary civil actions does not apply to quieting of title. In declaratory
relief, the subject-matter is a deed, will, contract or other written instrument, statute, executive order or
regulation, or ordinance. The issue is the validity or construction of these documents. The relief sought is the
declaration of the petitioner’s rights and duties thereunder. Being in the nature of declaratory relief, this special
civil action presupposes that there has yet been no breach or violation of the instruments involved.(Republic of
the Philippines vs. Mangotara, G.R. No. 170375, July 7, 2010)
CERTIORARI AGAINST COMELEC AND COA - Rule 64
This provision (Art. IX, Sec. 7 of the Constitution) means final orders, rulings and decisions of the
COMELEC rendered in the exercise of its adjudicatory or quasi-judicial powers. This decision must be a final
decision or resolution of the Comelec en banc, not of a division, certainly not an interlocutory order of a
division. The Supreme Court has no power to review via certiorari, an interlocutory order or even a final
resolution of a Division of the Commission on Elections. The mode by which a decision, order or ruling of
the Comelec en banc may be elevated to the Supreme Court is by the special civil action of certiorari under
Rule 65, in relation to Rule 64 of the 1997 Rules of Civil Procedure, which provides: SEC. 2. Mode of review. –
A judgment or final order or resolution of the Commission on Elections and the Commission on Audit may be
brought by the aggrieved party to the Supreme Court on certiorari under Rule 65, except as hereinafter
provided.” (Jumamil vs. Comelec, G.R. No. 167989-93, March 6, 2007 En Banc)
. While original jurisdiction of the Supreme Court over petitions for certiorari, prohibition, mandamus, quo
warranto, and habeas corpus is shared with the Court of Appeals and the RTCs, a direct invocation of the
Supreme Court’s jurisdiction is allowed only when there are special and important reasons therefor, clearly and
especially set out in the petition. Among the cases we have considered sufficiently special and important to be
exceptions to the rule, are petitions for certiorari, prohibition, mandamus and quo warranto against our nation’s
lawmakers when the validity of their enactments is assailed. The present petition is of this nature; its subject
matter and the nature of the issues raised – among them, whether legislative reapportionment involves a
division of Cagayan de Oro City as a local government unit – are reasons enough for considering it an
exception to the principle of hierarchy of courts. Additionally, the petition assails as well a resolution of the
COMELEC en banc issued to implement the legislative apportionment that R.A. No. 9371 decrees. As an
action against a COMELEC en banc resolution, the case falls under Rule 64 of the Rules of Court that
in turn requires a review by this Court via a Rule 65 petition for certiorari. For these reasons, we do not
see the principle of hierarchy of courts to be a stumbling block in our consideration of the present
case. (Bagabuyo vs. Comelec, G.R. No. 176970, December 8, 2008 En Banc).
QUO WARRANTO - Rule 66
Actions of quo warranto against persons who usurp an office in a corporation, which were formerly
cognizable by the Securities and Exchange Commission under PD 902-A, have been transferred to the courts
of general jurisdiction. But, this does not change the fact that Rule 66 of the 1997 Rules of Civil Procedure
does not apply to quo warrantocases against persons who usurp an office in a private
corporation (Calleja vs. Panday, G.R. No. 168696. February 28, 2006).
Quo warranto proceedings determine the right of a person to the use or exercise of a franchise or an office
and to oust the holder from its enjoyment, if the latter’s claim is not well-founded, or if he has forfeited his right
to enjoy the privilege
In the instance in which the petition for quo warranto is filed by an individual in his own name, he must be
able to prove that he is entitled to the controverted public office, position, or
franchise; otherwise, the holder of the same has a right to the undisturbed possession thereof. In actions for
quo warranto to determine title to a public office, the complaint, to be sufficient in form, must show that the
plaintiff is entitled to the office. An action for quo warranto may be dismissed at any stage when it
becomes apparent that the plaintiff is not entitled to the disputed public office, position or franchise.
Hence, the RTC is not compelled to still proceed with the trial when it is already apparent on the face of the
petition for quo warranto that it is insufficient. The RTC may already dismiss said petition at this point.
(Feliciano vs. Villasin, G.R. No. 174929, June 27, 2008 En Banc).
EXPROPRIATION - Rule 67
Rep. Act No. 8974 mandates immediate payment of the initial just compensation prior to the
issuance of the writ of possession in favor of the government. RA 8974 requires that the government
make a direct payment to the property owner before the writ may issue. Such payment is based on the zonal
valuation of the BIR in the case of land, the value of the improvements or structures under the replacement
cost method, or if no such valuation is available and in cases of utmost urgency, the proffered value of the
property to be seized. It is the plain intent of RA 8974 to supersede the system of deposit under Rule 67 with
the scheme of “immediate payment” in cases involving national government infrastructure projects (Republic
vs. Gingoyon, G.R. No. 166249, December 19, 2005).
Motion to dismiss is not permitted in a complaint for expropriation. Significantly, the Rule allowing a
defendant in an expropriation case to file a motion to dismiss in lieu of an answer was amended by the 1997
Rules of Civil Procedure, which took effect on July 1, 1997. Section 3, Rule 67 now expressly mandates that
any objection or defense to the taking of the property of a defendant must be set forth in an answer. (Masikip
vs. City of Pasig, G.R. No. 136349. January 23, 2006)
Before a local government unit may enter into the possession of the property sought to be expropriated, it
must (1) file a complaint for expropriation sufficient in form and substance in the proper court and (2) deposit
with the said court at least 15% of the property's fair market value based on its current tax declaration. The law
(RA 7160) does not make the determination of a public purpose a condition precedent to the issuance
of a writ of possession.( Francia, Jr. vs. Municipality of Meycauayan, G.R. No. 170432, March 24, 2008 ).
A local government unit cannot authorize an expropriation of private property through a mere
resolution of the lawmaking body. Sec. 19 of RA 7160 expressly requires an ordinance for the purpose and
a resolution that merely expresses the sentiment of the municipal
council will not suffice (Beluso vs. the Municipality of Panay Capiz, G.R. No. 153974, August 7, 2006).
Just compensation, when determined
Where the taking preceded the filing of the complainf for expropriation, just compensation must be
determined at the time the expropriating authority takes possession thereof and not as of the institution of the
proceedings (Republic of the Philippines vs. Sarabia, G.R. No. 157847, August 25, 2005, 468 SCRA
142)..Where the filing of the complaint preceded the plaintiff’s entry into the property, the just compensation is
to be ascertained as of the time of said fiing (National Power Corporation vs. De la Cruz, G.R. No. 156093,
February 2, 2007).
The issue of ownership should be litigated in the expropriation court. The court hearing the expropriation
case is empowered to entertain the conflicting claims of ownership of the condemned property and adjudge the
rightful owner thereof, in the same expropriation case. This is due to the intimate relationship of the issue of
ownership with the claim for the expropriation payment. Petitioners’ objection regarding respondents’ claim
over the expropriation payment should have been brought up in the expropriation court as opposition to
respondent’s motion. While we do not know if such objection was already made, the point is that the proper
venue for such issue is the expropriation court, and not here where a different cause of action (specific
performance) is being litigated. (Heirs of Mario Pacres vs. Heirs of Cecilia Ygoña, G.R. No. 174719, May 5,
2010)
FORECLOSURE OF REAL ESTATE MORTGAGE - Rule 68
A writ of possession is “a writ of execution employed to enforce a judgment to recover the possession
of land. It commands the sheriff to enter the land and give possession of it to the person entitled under the
judgment.”
A writ of possession may be issued under the following instances: (1) in land registration proceedings
under Section 17 of Act 496; (2) in a judicial foreclosure, provided the debtor is in possession of the mortgaged
realty and no third person, not a party to the foreclosure suit, had intervened; (3) in an extrajudicial
foreclosure of a real estate mortgage under Section 7 of Act No. 3135, as amended by Act No. 4118; and (4) in
execution sales (last paragraph of Section 33, Rule 39 of the Rules of Court).
The present case falls under the third instance. Under Section 7 of Act No. 3135, as amended by Act No.
4118, a writ of possession may be issued either (1) within the one-year redemption period, upon the filing of a
bond, or (2) after the lapse of the redemption period, without need of a bond. (PNB vs. Sanao Marketing
Corporation, G.R. No. 153951, July 29, 2005)
An action to invalidate the mortgage or the foreclosure sale is not a valid ground to oppose issuance
of writ of possession.
As a rule, any question regarding the validity of the mortgage or its foreclosure cannot be a legal ground for
refusing the issuance of a writ of possession. Regardless of whether or not there is a pending suit for
annulment of the mortgage or the foreclosure itself, the purchaser is
entitled to a writ of possession, without prejudice of course to the eventual outcome of said case. (Sps. Arquiza
vs. Court of Appeals, G.R. No. 160479, June 8, 2005)
The venue of the action for the nullification of the foreclosure sale is properly laid with the Malolos
RTC although two of the properties together with the Bulacan properties are situated in Nueva Ecija.
The venue of real actions affecting properties found in different provinces is determined by the SINGULARITY
or PLURALITY of the transactions involving said parcels of land. Where said parcels are the object of one and
the same transaction, the venue is in the court of any of the provinces wherein a parcel of land is situated
(United Overseas Bank Phils. (formerly Westmont Bank) vs. Rosemoor Mining & Development Corp., G.R.
Nos. 159669 & 163521, March 12, 2007).
Rule 68 governs the judicial foreclosure of mortgages. Extra-judicial foreclosure of mortgages, which
was what transpired in the case at bar, is governed by Act No. 3135, as amended by Act No. 4118, Section 6
of Republic Act No. 7353, Section 18 of Republic Act No. 7906, and Section 47 of Republic Act No. 8791. A.M.
No. 99-10-05-0, issued on December 14, 1999, provides for the procedure to be observed in the conduct of an
extrajudicial foreclosure sale. .
Unlike Rule 68, which governs judicial foreclosure sales, neither Act No. 3135 as amended, nor A.M.
No. 99-10-05-0 grants to junior encumbrancers the right to receive the balance of the purchase price.
The only right given to second mortgagees in said issuances is the right to redeem the foreclosed property
pursuant to Section 6 of Act No. 3135, as amended by Act No. 4118 (Monzon vs. Relova, G.R. No. 171827,
September 17, 2008).
A mortgage-creditor may, in the recovery of a debt secured by a real estate mortgage, institute
against the mortgage-debtor either a personal action for debt or a real action to foreclose the
mortgage. These remedies available to the mortgage-creditor are deemed alternative and not cumulative. An
election of one remedy operates as a waiver of the other. Hence, a remedy is deemed chosen upon the
filing by the mortgage-creditor of the suit for collection or upon his filing of the complaint in an action for
foreclosure of mortgage, pursuant to the provisions of Rule 68 of the Rules of Court.
,The impliedly instituted civil action in Criminal Cases No. 612-90 to No. 615-90 for violation of Batas
Pambansa Blg. 22 was, in effect, a collection suit or suit for the recovery of the mortgage-debt since the
dishonored checks involved in the said criminal cases were issued by respondent Eulogio to petitioner for the
payment of the same loan secured by the Deed of Real Estate Mortgage. This precludes the petitioner from
subsequently availing himself of the action to foreclose the mortgaged property (Chieng vs. Spouses Santos,
G.R. No. 169647, August 31, 2007).
Where the mortgage creditor chooses the remedy of foreclosure and the proceeds of the
foreclosure sale are insufficient to cover the debt, the mortgagee is entitled to claim the deficiency
from the debtor. The law gives the mortgagee the right to claim for the deficiency resulting from the price
obtained in the sale of the property at public auction and the outstanding obligation at the time of the
foreclosure proceedings. This rule is based on the principle earlier mentioned that the mortgage is only a
security and not a satisfaction of the mortgagor’s entire obligation. (Suico Rattan & Buri Interiors, Inc. vs. Court
of Appeals, G.R. No. 138145, June 15, 2006)
A writ of preliminary injunction is issued to prevent an extrajudicial foreclosure, only upon a clear
showing of a violation of the mortgagor’s unmistakable right. Unsubstantiated allegations of denial of due
process and prematurity of a loan are not sufficient to defeat the mortgagee’s unmistakable right to an
extrajudicial foreclosure.(Selegna Management and Development Corporation vs. UCPB, G.R. No. 165662,
May 31, 2006)
Filing fee in extrajudicial foreclosure
The applicant in extrajudicial foreclosure covering properties located in different provinces is required to pay
only one filing fee regardless of the number of properties to be foreclosed so long as the application covers
only one transaction or indebtedness. The venue however of the extrajudicial foreclosure proceedings is the
place where each of the mortgaged properties is located (Benguet Management Corp. vs. Court of Appeals,
G.R. No. 153571, Sept. 16, 2003 )
When writ of possession not ministerial duty Unlike a judicial foreclosure of real estate mortgage under
Rule 68 of the Rules of Court where an action for foreclosure is filed before the RTC where the mortgaged
property or any part thereof is situated, any property brought within the ambit of Act 3135 is foreclosed by the
filing of a petition, not with any court of justice, but with the office of the sheriff of the province where the sale is
to be made. As such, a third person in possession of an extrajudicially foreclosed property, who claims a
right superior to that of the original mortgagor, is given no opportunity to be heard on his claim. It stands to
reason, therefore, that such third person may not be dispossessed on the strength of a mere ex parte
possessory writ, since to do so would be tantamount to his summary ejectment, in violation of the
basic tenets of due process.
The Court cannot sanction a procedural shortcut. To enforce the writ against petitioner, an unwitting third
party possessor who took no part in the foreclosure proceedings, would amount to the taking of real property
without the benefit of proper judicial intervention. Hence, it was not a ministerial duty of the trial court under Act
3135 to issue a writ of possession for the ouster of petitioner from the lot subject of this instant case,
particularly in light of the latter’s opposition, claim of ownership and rightful possession of the disputed
properties. (Villanueva vs. Cherdan Lending Investors Corporation, G.R. No. 177881, October 13, 2010; Dayot
vs. Shell Chemical Company, (Phils.), Inc., G.R. No. 156542, June 26, 2007)
PARTITION - Rule 69
In an action for partition, all other persons interested in the property shall be joined as
defendants. Not only the co-heirs but also all persons claiming interests or rights in the property subject of
partition are indispensable parties. In the instant case, it is the responsibility of Panfilo as plaintiff in Civil Case
No. 15465 to implead all indispensable parties, that is, not only Faustino and Danilo but also respondents in
their capacity as vendees and donees of the subject fishponds. Without their presence in the suit the judgment
of the court cannot attain real finality against them. Being strangers to the first case, they are not bound by the
decision rendered therein; otherwise, they would be deprived of their constitutional right to due process.
In a complaint for partition, the plaintiff seeks, first, a declaration that he is a co-owner of the
subject properties; and second, the conveyance of his lawful shares. An action for partition is at once an
action for declaration of co-ownership and for segregation and conveyance of a determinate portion of the
properties involved. (Abalos vs. Bucal, G.R. No. 156224, February 19, 2008 ).
Partition is the proper remedy for compulsory or legal heirs to get their legitime or share of the
inheritance from the decedent. An action for partition is at once an action for declaration of co-ownership
and for segregation and conveyance of a determinate portion of the properties involved. Being a compulsory
heir of Don Fabian, Tirso has the right to compel partition of the properties comprising the intestate estate of
Don Fabian as a measure to get his hereditary share. His right as an heir to a share of the inheritance covers
all the properties comprising the intestate estate of Don Fabian at the moment of his death. Before partition
and eventual distribution of Don Fabian’s intestate estate, a regime of co-ownership among the compulsory
heirs existed over the undivided estate of Don Fabian. Being a co-owner of that intestate estate, Tirso’s right
over a share thereof is imprescriptible. Contrary to petitioners’ stance, reconveyance is not the proper remedy
available to Tirso. Tirso is not asserting total ownership rights over the subject properties, but only insofar as
his legitime from the intestate estate of his father, Don Fabian, is concerned. (Monteroso vs. Court of
Appeals, G.R. No. 105608, April 30, 2008).
An action for partition implies that the property is still owned in common. Considering that the heirs had
already executed a deed of extrajudicial settlement and waived their shares in favor of respondent, the
properties are no longer under a state of co-ownership; there is nothing more to be partitioned, as ownership
had already been merged in one person. (Mangahas vs. Brobio, G.R. No. 183852, October 20, 2010)
FORCIBLE ENTRY AND UNLAWFUL DETAINER - Rule 70
Real and in personam actions
1. Forcible entry and unlawful detainer actions are actions affecting possession of real property and hence
are real actions. Venue is the place where the property subject of the action is situated (Sec. 1, Rule 4).
2. They are also actions in personam because the plaintiff seeks to enforce a personal obligation on the
defendant to vacate the property subject of the action. restore physical possession thereof to the plaintiff, and
pay actual damages by way of reasonable compensation for his use or occupation of the property (Domagas
vs. Jensen, G.R. No. 158407, January 17, 2005 ).
In forcible entry or unlawful detainer cases, the only damage that can be recovered is thefair rental value or
the reasonable compensation for the use and occupation of the leased property. The reason for this is
that the only issue raised in ejectment cases is that of rightful possession; hence, the damages which could be
recovered are those which the plaintiff could have sustained as a mere possessor, or those caused by the loss
of the use and occupation of the property, and not the damages which he may have suffered but which have
no direct relation to his loss of material possession. (Dumo vs. Espinas, G.R. No. 141962, January 25, 2006)
The judgment rendered in an action for unlawful detainer shall be conclusive with respect to the possession
only and shall in no wise bind the title or affect the ownership of the land or building. Such judgment would not
bar an action between the same parties respecting title to the land or building. Section 18, Rule 70 of the
Rules of Court provides that when the defendant raises the defense of ownership in his pleadings and the
question of possession cannot be resolved without deciding the issue of ownership, the issue of ownership
shall be resolved only to determine the issue of possession. (Roberts vs. Papio, G.R. No. 166714, February 9,
2007)
Unlawful detainer and forcible entry suits under Rule 70 of the Rules of Court are designed to summarily
restore physical possession of a piece of land or building to one who has been illegally or forcibly deprived
thereof, without prejudice to the settlement of the parties’ opposing claims of juridical possession in appropriate
proceedings. (Salting vs. Velez, G.R. No. 181930, January 10, 2011)
The sole issue for resolution in an unlawful detainer case is physical or material possession of the property
involved, independent of any claim of ownership by any of the parties. Where the issue of ownership is raised
by any of the parties, the courts may pass upon the same in order to determine who has the right to possess
the property. The adjudication is, however, merely provisional and would not bar or prejudice an action
between the same parties involving title to the property. Since the issue of ownership was raised in the
unlawful detainer case, its resolution boils down to which of the parties' respective evidence deserves more
weight. (Esmaquel vs. Sordevilla, G.R. No. 152423, December 15, 2010)
The avowed objective of actions for forcible entry and unlawful detainer, which have purposely been made
summary in nature, is to provide a peaceful, speedy and expeditious means of preventing an alleged illegal
possessor of property from unjustly continuing his possession for a long time, thereby ensuring the
maintenance of peace and order in the community; otherwise, the party illegally deprived of possession might
feel the despair of long waiting and decide as a measure of self-protection to take the law into his hands and
seize the same by force and violence. And since the law discourages continued wrangling over possession of
property for it involves perturbation of social order which must be restored as promptly as possible,
technicalities or details of procedure which may cause unnecessary delays should accordingly and carefully be
avoided. (Sarmiento vs. Lindayag, A.M. No. MTJ-09-1743 [Formerly A.M. No. OCA IPI No. 08-1954-MTJ],
August 3, 2010)
What are the kinds of action to recover possession of real property?
(a) accion interdictal; (b) accion publiciana; and (c) accion reivindicatoria.
Accion interdictal comprises two distinct causes of action namely, forcible entry (detentacion) and unlawful
detainer (desahuico). In forcible entry, one is deprived of physical possession of real property by means of
force, intimidation, strategy, threats, or stealth whereas in unlawful detainer, one illegally withholds possession
after the expiration or termination of his right to hold possession under any contract, express or implied
The jurisdiction of these two actions, which are summary in nature, lies in the propermunicipal trial court
or metropolitan trial court. Both actions must be brought within one year from the date of actual entry on
the land, in case of forcible entry, and from the date of last demand, in case of unlawful detainer. The
issue in said cases is the right to physical possession.
Accion publiciana is the plenary action to recover the right of possession which should be brought in the
proper regional trial court when dispossession has lasted for more than one year. It is an ordinary civil
proceeding to determine the better right of possession of realty independently of title. In other words, if at the
time of the filing of the complaint more than one year had elapsed since defendant had turned plaintiff out of
possession or defendant’s possession had become illegal, the action will be, not one of forcible entry or illegal
detainer,
but an accion publiciana. On the other hand, accion reivindicatoria is an action to recover ownership also
brought in the proper regional trial in an ordinary civil proceeding (Valdez, Jr. vs. Court of Appeals, G.R No.
132424, May 4, 2006)
Accion publiciana is one for the recovery of possession of the right to possess. It is also referred to as
an ejectment suit filed after the expiration of one year after the occurrence of the cause of action or from the
unlawful withholding of possession of the realty. (Hilario vs.Salvador G.R. No. 160384, April 29, 2005)
In forcible entry cases, the prescriptive period is counted from the date of defendant’s actual entry
on the land; in unlawful detainer, from the date of the last demand to vacate. Hence, to determine
whether the case was filed on time, there was a necessity to ascertain whether the complaint was one for
forcible entry or unlawful detainer (Canlas vs. Tubil, G.R. No. 184285, September 25, 2009).
Does the RTC have jurisdiction over all cases of recovery of possession regardless of the value of the
property involved?
NO. The doctrine that all cases of recovery of possession or accion publiciana lies with the regional trial
courts regardless of the value of the property — no longer holds true. As things now stand, a distinction must
be made between those properties the assessed value of which is below P20,000.00, if outside Metro Manila;
and P50,000.00, if within (Quinagoran vs. Court of Appeals, G.R. No. 155179. August 24, 2007)
. Specifically, the regional trial court exercises exclusive original jurisdiction "in all civil actions which involve
possession of real property." However, if the assessed value of the real property involved does not exceed P50,000.00
in Metro Manila, and P20,000.00 outside of Metro Manila, the municipal trial court exercises jurisdiction over
actions to recover possession of real property (Atuel vs. Valdez, June 10, 2003, 403 SCRA 517, 528).
All cases involving title to or possession of real property with an assessed value of less than P20,000.00 if outside
Metro Manila, fall under the original jurisdiction of the municipal trial court. (Aliabo v. Carampatan, G.R. No. 128922,
March 16, 2001, 354 SCRA 548, 552).
A complaint must allege the assessed value of the real property subject of the complaint or the interest thereon
to determine which court has jurisdiction over the action. This is because the nature of the action and which court has
original and exclusive jurisdiction over the same is determined by the material allegations of the complaint, the type of
relief prayed for by the plaintiff and the law in effect when the action is filed, irrespective of whether the plaintiffs are
entitled to some or all of the claims asserted therein. ( Laresma v. Abellana, G.R. No. 140973, November 11, 2004, 442
SCRA 156; Hilario v. Salvador, G.R. No. 160384, April 29, 2005, 457 SCRA 815).
A complaint for reconveyance of a parcel of land which involves title to or interest in real property
should allege the assessed value of the land. The complaint specified only the market value or estimated
value which is P15,000.00. In the absence of an assessed value, or in lieu thereof, the estimated value may
be alleged.
Sec. 22 of BP 129 as amended by R.A. No. 7691 (where the assessed value of the real property does not
exceed P20,000.00 or P50,000.00 in Metro Manila) grants the MTC exclusive jurisdiction over subject
case.The nature of an action is determined not by what is stated in the caption of the complaint but its
allegations and the reliefs prayed for. Where the ultimate objective of the plaintiff is to obtain title to real
property, it should be filed in the proper court having jurisdiction over the assessed value of the property
subject thereof.(Barangay Piapi vs. Talip, 469 SCRA 409 [2005]).
The determining jurisdictional element for the accion reivindicatoria is, as RA 7691 discloses, the assessed
value of the property in question. For properties in the provinces, the RTC has jurisdiction if the assessed value
exceeds P20,000, and the MTC, if the value is P20,000 or below. An assessed value can have reference only to the tax
rolls in the municipality where the property is located, and is contained in the tax declaration. It is the amount in the tax
declaration that should be consulted and no other kind of value, and as appearing in Exhibit B, this is P5,950. The case,
therefore, falls within the exclusive original jurisdiction of the Municipal Trial Court of Romblon which has jurisdiction
over the territory where the property is located, and not the court a quo. (Hilario vs. Salvador, G.R. No. 160384. April
29, 2005, 457 SCRA 815)
The actions envisaged in the aforequoted provisions (Secs. 19 and 33. BP 129, as amended by RA 7691) are
accion publiciana and reivindicatoria. To determine which court has jurisdiction over the action, the complaint
must allege the assessed value of the real property subject of the complaint or the interest thereon. The complaint
does not contain any allegation of the assessed value of Lot 4-E covered by TCT No. 47171. There is, thus, no showing on
the face of the complaint that the RTC had exclusive jurisdiction over the action of the respondent. Moreover, as gleaned
from the receipt of realty tax payments issued to the respondent, the assessed value of the property in 1993 was
P8,300.00. Patently then, the Municipal Trial Court of Aloguinsan, Cebu, and not the Regional Trial Court of
Toledo City, had exclusive jurisdiction over the action of the respondent. Hence, all the proceedings in the RTC,
including its decision, are null and void (Laresma vs. Abellana, G.R. No. 140973, November 11, 2004, 442 SCRA 156;
Aliabo vs. Carampatan, G.R. No. 128922, March 16, 2001, 354 SCRA 548).; Ouano vs. PGTT Int'l. Investment
Corporation, ,G.R. No. 134230, July 17, 2002, 384 SCRA 589 ).
With the modifications introduced by RA No. 7691 in 1994, the jurisdiction of the first level courts has been
expanded to include jurisdiction over other real actions where the assessed value does not exceed P20,000,
000, and P50,000.00 where the action is filed in Metro Manila. The first level courts thus have exclusive
original jurisdiction over accion publiciana and accion reinvidicatoria where the assessed value of the property
does not exceed the aforementioned amounts. Accordingly, the jurisdictional element is the assessed
value of the property (Vda. de Barrera vs. Heirs of Legaspi, G.R. No. 174346, September 12, 2008).
Accion publiciana is the plenary action to recover the right of possession which should be brought in the

proper regional trial court when dispossession has lasted for more than one year (Canlas vs. Tubil, G.R.
No. 184285, September 25, 2009).
Mandatory allegations for the municipal trial court to acquire jurisdiction over forcible entry
First, the plaintiff must allege his prior physical possession of the property. Second, he must also allege that he was
deprived of his possession by force, intimidation, threat, strategy or stealth. If the alleged dispossession did not occur by
any of these means, the proper recourse is to file not an action for forcible entry but a plenary action to recover
possession with the Regional Trial Court (Benguet Corporation vs. Cordillera Caraballo Mission, Inc., G.R. No.155343,
September 2, 2005)..
In order to constitute force that would justify a forcible entry case, the trespasser does not have to
institute a state of war. The act of going to the property and excluding the lawful possessor therefrom
necessarily implies the exertion of force over the property which is all that is necessary and sufficient to show
that the action is based on the provisions of Section 1, Rule 70 of the Rules of Court. The words ‘by force,
intimidation, threat, strategy or stealth’ include every situation or condition under which one person can
wrongfully enter upon real property and exclude another, who has had prior possession therefrom (Bunyi vs.
Factor, G.R. No. 172547, June 30, 2009)
For one to be considered in possession, one need not have actual or physical occupation of every
square inch of the property at all times. Possession can be acquired not only by material occupation, but
also by the fact that a thing is subject to the action of one’s will or by the proper acts and legal formalities
established for acquiring such right. Possession can be acquired by juridical acts. These are acts to which the
law gives the force of acts of possession. Examples of these are donations, succession, execution and
registration of public instruments, and the inscription of possessory information titles (Id.).
Demand in unlawful detainer
 Petitioner, as vendor, must comply with two requisites for the purpose of bringing an ejectment suit: (a) there
must be failure to pay the installment due or comply with the conditions of the Contract to Sell; and (b) there
must be demand both to pay or to comply and vacate within the periods specified in Section 2 of Rule 70,
namely: 15 days in case of land and 5 days in case of buildings. The first requisite refers to the existence of
the cause of action for unlawful detainer, while the second refers to the jurisdictional requirement of demand in
order that said cause of action may be pursued. Both demands – to pay installment due or adhere to the
terms of the Contract to Sell and to vacate are necessary to make the vendee deforciant in order that an
ejectment suit may be filed. It is the vendor's demand for the vendee to vacate the premises and the
vendee's refusal to do so which makes unlawful the withholding of the possession. Such refusal
violates the vendor's right of possession giving rise to an action for unlawful detainer (Larano vs. Sps.
Calendacion, G.R. No. 158231, June 19, 2007).
Possession by tolerance becomes unlawful from the time of demand to vacate.
Petitioner’s cause of action for unlawful detainer springs from respondents’ failure to vacate the
questioned premises upon his demand sometime in 1996. Within one (1) year therefrom, or on November 6,
1996, petitioner filed the instant complaint.
Possession by tolerance is lawful, but such possession becomes unlawful when the possessor by
tolerance refuses to vacate upon demand made by the owner. (Santos vs. Sps. Ayon, G.R. No. 137013, May
6, 2005)
Where the period of the lease has expired and several demands were sent to the lessee to vacate,
when should the one year period to file unlawful detainer be reckoned? From the date of the original
demand or from the date of the last demand?
From the date of the original demand if the subsequent demands are merely in the nature of reminders or
reiterations of the original demand.
Demand or notice to vacate is not a jurisdictional requirement when the action is based on the expiration of
the lease.. The law requires notice to be served only when the action is due to the lessee’s failure to pay or the
failure to comply with the conditions of the lease. The one-year period is thus counted from the date of first
dispossession. The allegation that the lease was on a month-to-month basis is tantamount to saying that the
lease expired every month. Since the lease already expired mid-year in 1995, as communicated in petitioners’
letter dated July 1, 1995, it was at that time that respondent’s occupancy became unlawful. (Racaza vs.
Gozum, June 8, 2006, 490 SCRA 313)
As a general rule, an ejectment suit cannot be abated or suspended by the mere filing before the
regional trial court (RTC) of another action raising ownership of the property as an issue. As an
exception, however, unlawful detainer actions may be suspended even on
appeal, on considerations of equity, such as when the demolition of petitioners' housewould result from the
enforcement of the municipal circuit trial court (MCTC) judgment.(Amagan vs. Marayag, G.R. No. 138377,
February 28, 2000)
Even if RTC judgments in unlawful detainer cases are immediately executory (under Sec. 21 of Rule
70), preliminary injunction may still be granted. There need only be clear showing that there exists a right
to be protected and that the acts against which the writ is to be directed violate said right.(Benedicto vs.
CA, G.R. No. 157604, October 19, 2005)
CONTEMPT - Rule 71
Contempt of court is “a defiance of the authority, justice or dignity of the court: such conduct as tends to
bring the authority and administration of the law into disrespect or to interfere with or prejudice parties litigants
or their witnesses during litigation.” Succinctly, it is the despising of the authority, justice, or dignity of the
court. Rule 71 provides for two forms of contumacious acts – direct and indirect.
A willful and deliberate violation of the rule against forum shopping is a ground for summary dismissal of the
case, and may also constitute direct contempt. (Philippine Deposit Insurance Corporation (PDIC) vs.
Philippine Countryside Rural Bank, Inc., G.R. No. 176438, January 24, 2011)
An order of direct contempt is not immediately executory or enforceable. The contemnor must be afforded a
reasonable remedy to extricate or purge himself of the contempt. Where the person adjudged in direct
contempt by any court avails of the remedy of certiorari or prohibition, the execution of the judgment shall be
suspended pending resolution of such petition provided the contemnor files a bond fixed by the court which
rendered the judgment and conditioned that he will abide by and perform the judgment should the petition be
decided against him. (Rodriguez vs. Blancaflor, G.R. No. 190171, March 14, 2011)
Respondent Judge’s blunder was compounded when she immediately cited complainant in contempt of
court and issued the bench warrant without requiring the latter to explain the reason for his non-appearance
and non-compliance with a standing order. Under Rule 71 of the Rules of Court, complainant’s alleged
disobedience is an indirect contempt the punishment for which requires that a respondent should be
first asked to show cause why he should not be punished for contempt.
Respondent also abused her contempt powers. If at all, complainant was guilty of indirect contempt
and not direct contempt. For not affording complainant the opportunity to explain why he should not be cited
in contempt, she blatantly disregarded Rule 71 of the Rules of Court (Tabujara vs. Judge Asdala, A.M. No.
RTJ-08-2126 [Formerly OCA I.P.I. No. 08-2896-RTJ], January 20, 2009 Jan 20, En Banc)
Indirect contempt refers to contumacious acts perpetrated outside of the sitting of the court and may
include misbehavior of an officer of a court in the performance of his official duties or in his official transactions,
disobedience of or resistance to a lawful writ, process, order, judgment, or command of a court, or injunction
granted by a court or a judge, any abuse or any unlawful
interference with the process or proceedings of a court not constituting direct contempt, or any improper
conduct tending directly or indirectly to impede, obstruct or degrade the administration of justice.
Before one may be convicted of indirect contempt, there must be compliance with the following
requisites: (a) a charge in writing to be filed; (b) an opportunity for respondent to comment thereon
within such period as may be fixed by the court; and (c) an opportunity to be heard by himself or by
counsel. (Tokio Marine Malayan Insurance Company Inc. vs. Valdez, G.R. No. 150107, January 28, 2008).
A person may be charged with indirect contempt only by either of two alternative ways, namely: (1) by a
verified petition, if initiated by a party; or (2) by an order or any other formal charge requiring the respondent to
show cause why he should not be punished for contempt, if made by a court against which the contempt is
committed. In short, a charge of indirect contempt must be initiated through a verified petition, unless the
charge is directly made by the court against which the contemptuous act is committed (Mallari vs. Government
Service Insurance System, G.R. No. 157659, January 25, 2010 )
Use of falsified and forged documents constitutes indirect contempt not direct contempt ( Judge
Dolores Espanol vs. Atty. Benjamin Formoso, G.R. No. 150949, June 21, 2007).