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July 5, 2019 (Civil Procedure)

Continuation on Provisional Remedies….

Preliminary Injunction
Main Action may be injunction; provisional remedy may be preliminary injunction

In obligations and Contract there is obligation to do or not to do. If the obligation is to do

and the other party refuses to perform his obligation to do, remedy is action for specific
performance to compel him to do his obligation. If obligation is not to do but he does it anyway
then the remedy is an action for Injunction to prevent him in doing the act complaint of.

Like when you are prohibited from singing and if you insist on singing they can file a
case against you on Injunction so that you will be prevented from singing, ganon daw.

2 Kinds of Injunction

1. Preliminary prohibitory injunction- to prohibit the performance of an act, also known as

“preliminary injunction”
2. Preliminary mandatory injunction –to compel performance of an act

Note: that there must be a main case and the applicant asks for the issuance of preliminary
injunction.

For him to be granted he must show that he has a right to be protected, existence of a right which
the applicant seeks to be protected, and then the defendant performs an act of which is a
violation of the victim’s right.

The writ of preliminary injunction must not be issued ex parte, there must be a hearing. If the
matter is urgent that the applicant may suffer grave and irreparable damage or injury then he may
ask for the issuance of a TRO (Temporary Restraining Order).

TRO cannot be issued without summary hearing; like parties will appear in court then they
explain their side on the controversy. But if the matter is of matter urgency the court may issue
72 hours TRO (definite lifetime of TRO is 20 days counted from the date the party serve with it).
Within the 20 days the court will conduct hearing as to the propriety of issuing the preliminary
injunction. 72 hours TRO is part of the 20 days. During the 72 hours, court will conduct
summary hearing to determine if the TRO of 72 hours will be extended for 20 days, note that 20
days is not extendable.
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Q: What is the Lifetime of TRO?

1. The lifetime of a temporary restraining order, id issued by the MTC or RTC, is 20 days
from service thereof on the party sought to be enjoined. If a 72-hour TRO is issue, the
total period of effectivity of the TRO shall not exceed 20 days, including the original 72
hours.
2. If by Court Appeals – Lifetime of 60 days from service on the part sought to be enjoined
3. If by the Supreme Court –TRO remain in effect until lifted by the Supreme court

Note: In computing the effectivity of a TRO, Saturdays, Sundays, and holidays are not excluded,
except when the last day of the period falls on such days.(Marcos-Manotoc v. Judge Acaoili,
A.M. RTJ-98-1405, April 12, 200; Bank of the Philippines Islands, etc. v. CA, et al., G.R. No.
142731, June 8,2006)

Receivership
A receiver is a representative of the court appointing him for the purpose of preserving
and conserving the property under receivership and preventing its possible destruction or
dissipation, if it goes to the possession of another person.(Salientes v. IAC,et al., G.R. No.L-
66211, July 1, 1995.)

Replevin
– both a main action and provisional remedy which involves recovery of personal property.

Writ of replevin is an action to recover personal property.

In one case the subject matter of the action is machinery attach to an immovable. Because
of non-payment of the purchase price, Seller filed an action for issuance for recovery of property
and the same time ask for issuance of replevin. Is application for the issuance of the replevin is
proper?

No because the subject matter of the action involves real property.

Q: When plaintiff should apply for an action for replevin?

A: at the commencement of the action or at any time before the defendant files his Answer.

Q: Where may the writ of replevin be enforce?

A: Enforceable anywhere in the Philippines whether issued by MTC or RTC.

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If plaintiff file an application of replevin, there must be affidavit (state that the applicant is the
owner of the property claimed or is entitled of the possession thereof , that the property is
wrongfully detained by the adverse party, alleging the cause of detention thereof according to the
best of his knowledge, information, and belief; that the property has not been distrained or taken
for a tax assessment or a fine pursuant to law, or seized under a writ of execution or preliminary
attachment, or otherwise placed under custodial egis, or if so seized, that it is exempt from such
seizure or custody ) and bond in an amount double the value (market value) of the property.

Example

X v. Y

If X state the value of property 150,000 pesos the bond shall be 300,000 pesos. The court may
issue the writ of replevin and the Sherriff will take into his custody the property subject of the
replevin, He will keep into his custody the property for 5 days. After 5 days he delivers the
property to the plaintiff. The plaintiff has now in his possession the property.

Q: What is the purpose of the five days?

If it delivers less than days, it is misconduct and the sheriff may be made administratively liable
because he has to keep it for 5 days.

During 5 days the defendant may require the return of the property to him by posting a
counter bond double amount the value of the property so that if the plaintiffs undervalue the
value of property the defendant can easily post counter bond which may to the disadvantage to
the plaintiff.

Defendant may object to the insufficiency of the bond within the 5 days.

In real life when a plaintiff files a complaint……in the complaint coupled with replevin he will
implead the person who in possession of the property as John Doe so that if the property is not in
the possession of the defendant it may be recovered to the person who is in possession of the
property. In the Complaint it state that John Doe is any person who is in the possession of the
property.
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Support Pendente Lite

While the action is pending the court may grant the support pendente lite. Only when
relationship is not disputed because if the relationship is disputed the court may not grant support
pendente lite.

Q: In what action may be support pendente lite ask or demanded?

The main action may be support or action for recognition of illegitimate child or legal
separation, like when wife demand support. Can be made in any proper action.

Court granting support is not final order but may be enforce by execution. This is the only
interlocutory that may be enforced by execution. The other way to enforce the order is to file a
motion to cite adverse party in contempt.

Q: May there be support pendent lite in criminal case?

Yes provided all the following requisites are present:

a. that a child was born by reason of the offense

b. the civil liability of the accused includes the support for the child
c. that the civil aspect of the criminal action has not been waived, reserved, or instituted
prior the filing of the criminal action or offended party has not reserve to file it
separately and did not instituted it prior to the criminal action.
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Special Civil Action

Rules applicable to ordinary civil action apply also to special civil action in addition to rules that
apply to them specifically.

Interpleader (Rule)
Several claimants have conflicting claims over a property in the possession of another person
who has no interest in the property.

For example:

X has in his custody a property, who has no interest or claim, there are several claimant
over the same property. X may file a complaint against all the claimant to compel them to
interplead and litigate or settle their claim among themselves.

The warehouse man issues a negotiable warehouse receipt to A. A claims to be the person
lawfully entitled to the possession of the goods in the possession of the warehouse man over
which he has issued a negotiable warehouse receipt to A. Then if the goods is delivered to B, the
warehouse man will be liable to A. If the warehouse man will deliver the goods to A because A
is in possession of a warehouse receipt he might be liable to B. To protect himself he can file a
complaint against A and B to compel them to interplead and to litigate their claims among
themselves.

A will show that he is entitled to the goods as well as B. The court will now decide the case as to
whom between A and B is entitled to the possession of the goods. The warehouse man will now
be ordered to deliver the goods to anyone found by the court to be entitled to the possession of
the goods.

The plaintiff will not be presenting evidence. The litigation is not between the plaintiff and
defendant. The litigation is between the conflicting claimants. In the example given, A and B
will present evidence.

Q: Who files the Petition:

A complaint for interpleader is filed by the person against whom the conflicting claims are made.

Q:When to file the Petition:

An action for interpleader should be filed within a reasonable time after a dispute has arisen
without waiting to be sued by either of the contending claimants. Otherwise it will be barred by
laches or undue delay.

NOTE: If there are no conflicting claims among the defendants, the complaint for interpleader
may be dismissed for lack of cause of action
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Declaratory Relief
Declaratory relief is a special civil action brought in the RTC by a person who is interested
under a deed, will, contract, or other written instrument, or whose rights are affected by a statute,
executive order or regulation, ordinance, or any other government regulation, before breach or
violation thereof, asking the court to determine any question of construction or validity arising,
and for a declaration of his right or duties, thereunder. (Rule 63, Sec. 1)

Declaratory relief should be file only if law or contract has not yet been violated.

If during the pendency of the case and before the termination thereof, a breach or violation of the
statue or instrument takes place, the special civil action for declaratory relief is converted into an
ordinary a civil action, and the parties shall be allowed to file such pleadings as may be
necessary or proper.(Rule 6, Section 6)

Third party complaint is not allowed because no material relief is being sought in the action. but
if the special civil action is converted to ordinary civil action by reason of the breach or violation
of the statute or instrument, then a third party complaint may now be files by the defendant.

Rule 65 : Certiorari, Prohibition, and Mandamus

Rule 45 is mode of appeal; Rules 65 is filing of civil action (why they don’t just use another
name to avoid confusion.)

Certiorari is a special civil action against a tribunal, board or officer exercising judicial or
quasi-judicial functions which is alleged in a verified petition filed by an aggrieved party to have
acted without or in excess its or his jurisdiction, or with grave abuse of discretion amounting to
lack or excess of jurisdiction, and there is no appeal, or any plain, speedy, and adequate remedy
in the ordinary course of law, praying that judgment be rendered annulling or modifying the
proceedings of such tribunal, board or officer, and granting such incidental reliefs as law and
justice may require. (Rule 65, Section 1)

Q: What are the distinctions between petition for review on certiorari as a mode of appeal
(under Rule 45) and a special civil action for certiorari (under Rule 65)?

A: The distinctions are:

a. In appeal by certiorari, the petition is based on questions of law which the appellant
desires the appellate court to resolve. In certiorari as an original action, the petition raises
the issues as to whether the lower court acted without or in excess of jurisdiction or with
grave abuse of discretion.
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b. Certiorari, as mode of appeal, involves the review of the judgment, award, or final order
on the merits. The original action for certiorari may be directed against an interlocutory
order of the court prior to appeal from the judgment or where there is no appeal or any
other speedy, plain, or adequate remedy.

c. Appeal by certiorari must be made within the reglementary period for appeal. An original
action for certiorari may be filed not later than 60 days from notice of the judgment,
order, or resolution sought to be assailed or notice of the order denying petitioner’s
motion for reconsideration.

d. Appeal by certiorari stays the judgment, award, or order appealed from. An original
action for certiorari does not stay the challenged proceedings, unless a writ of preliminary
injunction or a temporary restraining order shall have been issued.

::: X v. Y
Rule 65: the case in lower court will continue trying the case unless there is writ
of injunction is issued, if Y will not file an answer he might be declare in default, that
why in some cases they file an answer and they call it “answer ad cautelam”.

Rule 45: judgment cannot be implemented because it is suspended on appeal.

e. In appeal by certiorari, the petitioner and respondent are original parties to the action, and
the lower court or quasi-judicial agency is not to be impleaded. In certiorari as an original
action, the parties are the aggrieved party, as petitioner, against the lower court or quasi-
judicial agency and the prevailing parties, as respondents.

>Rule 45: P v. D

>Rule 65: D v. P and MTC/RTC

f. In certiorari for purposes of appeal, the prior filing of a motion for reconsideration is not
required. In certiorari as an original action, a motion for reconsideration is a condition
precedent, subject to certain exceptions.
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g. In appeal by certiorari, the appellate court is in the exercise of its appellate jurisdiction
and power to review. In certiorari as an original, the higher court exercises original
jurisdiction under its power control and supervision over proceedings of lower courts.

h. Appeal by certiorari is filed only with the supreme court. Original action for certiorari
may be filed with the RTC, CA, or SC. (Paa v. CA, G.R. No. 126560, Dec. 4, 1997.)

Petition for certiorari is only available only is no other adequate remedy and one cannot be file
this petition unless there is a denial for motion for reconsideration.

Problem:

X file complaint against Y with the MTC

Y filed Motion to Dismiss for improper venue in the MTC, denied

Motion for Reconsideration filed by Y = Denied

Y v. X and MTC – Petition for Certiorari with the RTC

Q: RTC dismiss the petition. What is the mode of appeal?

Appeal by Notice of appeal form RTC to CA because the RTC is exercising original jurisdiction.
This is special civil action, he went to RTC to file an original action although it is special civil
action, the case did not come from MTC, it is not an appealed from MTC that is why the mode
must be notice of appeal to the CA from the RTC. Appeal by notice of appeal to the CA to be
filed with the RTC.