RULE 9

EFFECT OF FAILURE TO PLEAD

Section 1. Defenses and objections not pleaded. — Defenses and objections not pleaded either in a
motion to dismiss or in the answer are deemed waived. However, when it appears from the
pleadings or the evidence on record that the court has no jurisdiction over the subject matter, that
there is another action pending between the same parties for the same cause, or that the action is
barred by a prior judgment or by statute of limitations, the court shall dismiss the claim. (1)

NOTES

The first sentence of afore-quoted provision states the general rule – that is, defenses and objection not pleaded
either in a motion to dismiss or in the answer are deemed waived.

On the other hand, the second sentence of the afore-quoted provision states the exception. And we already
discussed this exception when we discussed Section 12, Rule 8 of the Amended Rules. The exception pertains to
the following grounds:

1. The court has jurisdiction over the subject matter of the claim;
2. There is another action pending between the same parties for the same cause;
3. The action is barred by prior judgment; or
4. The action is barred by the statute of limitations.

To reiterate, these grounds may be pleaded in the answer by way of affirmative defenses, pursuant to Section 5,
Rule 6 of the Amended Rules, in relation to Section 12, Rule 8 of the Amended Rules. Notably, these grounds may
also be utilized in filing a motion to dismiss pursuant to Section 12(a) of the Amended Rules. Verily, the following
rules may be formulated:

1) The filing of a motion to dismiss prior to the filing of the answer is allowed for as long it is based
on any or all of the following grounds: (1) that the court has no jurisdiction over the subject
matter; (2) that there is another action pending between the same parties for the same cause; or
(3) that the action is barred by a prior judgment; or (4) that the claim is barred by statute of
limitation. These are the four permissible grounds for filing a motion to dismiss;

2) If no such motion to dismiss is filed based on any or all of the above-enumerated grounds, then
any or all of the said grounds must be pleaded in the answer by way of affirmative defenses,
together with any or all of the grounds enumerated under items (1) to (5) of paragraph (a),
Section 12, Rule 8, of the Amended Rules (which are no longer grounds for filing a motion to
dismiss, as they should just be pleaded in the answer by way of affirmative defenses);

3) But even if any or all of the above-enumerated grounds are not raised in the motion to dismiss or
pleaded in the answer by way of special defenses, the case or claim may still be dismissed on any
or all of those grounds, when it appears from the pleadings or the evidence on record that the
court has no jurisdiction over the subject matter, that there is another action pending between
the same parties for the same cause, or that the action is barred by a prior judgment, or by
statute of limitations, pursuant to Section 1, Rule 9 of the Amended Rules.
That the case may be dismissed on the ground of lack of jurisdiction over the subject matter, as provided for under
Section 1, Rule 9 of the Amended Rules, even if such ground is not raised either in a motion to dismiss or in the
answer by way of affirmative defense, is all the more buttressed by the doctrine that lack of jurisdiction over the
subject matter can be raised at any time, even for the first time on appeal, because jurisdiction over the subject
matter is conferred by law and cannot, therefore, be waived, subject however to the principle of estoppel by
laches as enunciated in the Tijam case.

Let it be stressed, however, that while the rule is that defenses and objections – other than (1) that the court has
no jurisdiction over the subject matter; (2) that there is another action pending between the same parties for the
same cause; or (3) that the action is barred by a prior judgment; or (4) that the claim is barred by statute of
limitation – that are not pleaded either in a motion to dismiss or in the answer are deemed waived, yet such rule
would not apply to a situation where an omitted defense is belatedly raised during the trial but which the party-
disputants nonetheless submitted to the court for resolution (Florentino Atillo III vs. Court of Appeals, G.R. No.
119053, January 23, 1997). For, in that situation, parties will be in estoppel.

Example:

In an action for collection of unpaid loan, defendant filed his answer in which the only affirmative
defense that he interposed is payment. During the trial, however, he presented evidence tending
to prove that his obligation has been extinguished by way of novation, and, for one reason or
another, the plaintiff did not interpose any objection to such evidence and that he even prayed
the court to rule on that issue. The court, in that situation, may tackle and resolve such issue on
novation of obligation.

The above situation may, thus, be taken as an additional exception to the general rule set forth under the first
sentence of Section 1, Rule 9.

Section 2. Compulsory counterclaim, or cross-claim, not set up barred. — A compulsory

counterclaim, or a cross-claim, not set up shall be barred. (2)

NOTES

The foregoing rule must be read in conjunction, as it is in line, with Section 8, Rule 11 of the Amended Rules, which
provides:

Section 8. Existing counterclaim or cross-claim. — A compulsory counterclaim or a cross-claim

that a defending party has at the time he or she files his or her answer shall be contained therein.

The reason for the foregoing rule is to avoid multiplicity of suits and to dispose of the whole matter in controversy
in one action, and adjustment of defendant’s demand by counterclaim rather than by independent suit (Reyes vs.
Court of Appeals, 38 SCRA 138).
 Example:

Waldi filed a complaint against me for allegedly causing damage to his car due to my reckless
driving. In my answer, I denied that I was driving my car recklessly, as I rather asserted therein
that it was Waldi who was negligent in driving his car, and that he was the one who hit and
damaged my car. Yet, in my answer, I did not pray that Waldi be adjudged liable instead for the
damages of my car.

Obviously, during the trial I cannot present evidence to establish my claim on the damages to my
car, more so if Waldi will object thereto.

Q: If, after trial, court finds that, indeed, Waldi is at fault, can the court award damages for my
car? A: No, the court cannot, in the very same case, award damages in my favor.

Q: But can I file a separate case for the damages on my car?

A: Not anymore. The rule is very clear. A compulsory counterclaim not set up shall be barred.

Section 3. Default; Declaration of. — If the defending party fails to answer within the time allowed
therefor, the court shall, upon motion of the claiming party with notice to the defending party, and
proof of such failure, declare the defending party in default. Thereupon, the court shall proceed to
render judgment granting the claimant such relief as his or her pleading may warrant, unless the
court in its discretion requires the claimant to submit evidence. Such reception of evidence may be
delegated to the clerk of court.

(a) Effect of order of default. — A party in default shall be entitled to notices of subsequent
proceedings but shall not take part in the trial.

(b) Relief from order of default. — A party declared in default may at any time after notice thereof
and before judgment, file a motion under oath to set aside the order of default upon proper
showing that his or her failure to answer was due to fraud, accident, mistake or excusable
negligence and that he or she has a meritorious defense. In such case, the order of default may be
set aside on such terms and conditions as the judge may impose in the interest of justice.

(c) Effect of partial default. — When a pleading asserting a claim states a common cause of action
against several defending parties, some of whom answer and the others fail to do so, the court shall
try the case against all upon the answers thus filed and render judgment upon the evidence
presented.

(d) Extent of relief to be awarded. — A judgment rendered against a party in default shall neither
exceed the amount or be different in kind from that prayed for nor award unliquidated damages.

(e) Where no defaults allowed. — If the defending party in an action for annulment or declaration
of nullity of marriage or for legal separation fails to answer, the court shall order the Solicitor
General or his or her deputized public prosecutor, to investigate whether or not a collusion between
the parties exists, and if there is no collusion, to intervene for the State in order to see to it that the
evidence submitted is not fabricated. (3a)
 NOTES

For better appreciation, we will dissect the foregoing provisions.

“Section 3. Default; Declaration of. — If the defending party fails to answer within
the time allowed therefor, the court shall, upon motion of the claiming party with
notice to the defending party, and proof of such failure, declare the defending party
in default. Thereupon, the court shall proceed to render judgment granting the
claimant such relief as his or her pleading may warrant, unless the court in its
discretion requires the claimant to submit evidence. Such reception of evidence may
be delegated to the clerk of court.”

Default is a procedural concept that occurs when the defending party fails to file his answer within the
reglementary period. It has two stages, thus.

1. Declaration of Default. This is the phase contemplated under the first sentence of Section 3, Rule 9 of the
Amended Rules. This happens when a party-disputant fails to file his answer to the pleading asserting a
claim against him, within the time specified in the rules – Rule 11 of the Amended Rules – of within such
extended time as allowed by the court. Take note that this is the only instance wherein a defendant can
properly be declared in default.

2. Rendition of Judgment by Default. This is the phase contemplated under the second sentence of Section
3, Rule 9 of the Amended Rules, as when the court would render judgment granting the claimant such
relief his or her complaint and/or the facts proven may warrant. Note: This can be had also under Section
3(c) and Section 5, Rule 29 of the Amended Rules, when a party refuses to answer any question in oral
examination in a deposition or any written interrogatory under Rule 25, or comply with the modes of
discovery (This is not, however, the trust of the present discussion).

As the foregoing provision mentions of a “defending party”, then default may be had or taken not only as against
the original defendant to the action, but also as against the original plaintiff (with respect to a permissive
counterclaim of the defendant), or a co-defendant (with respect to the cross-claim), or a third (fourth, etc.)-party
defendant (with respect to the third (fourth, etc.)-party complaint), conformably with the definitions given under
Section 1, Rule 3 of the Rules of Court, viz:.

Section 1. Who may be parties; plaintiff and defendant. — Only natural or

juridical persons, or entities authorized by law may be parties in a civil action.
The term "plaintiff" may refer to the claiming party, the counter-claimant, the
cross-claimant, or the third (fourth, etc.) — party plaintiff. The term
"defendant" may refer to the original defending party, the defendant in a
 counter-claim, the cross-defendant, or the third (fourth, etc.) — party
defendant.

But for a proper declaration of default, the following elements must be present:

i. The court must have validly acquired jurisdiction over the person of the defending party either by
service of summons or voluntary appearance (Laus vs. Court of Appeals, 219 SCRA 688).

ii. The claiming party must file a motion to declare the defending party in default (Sablas vs.
Sablas, 526 SCRA 292).

 The rule is different, however, in environmental cases. Should the defendant fail to
answer within the period provided, the court shall, on its own accord, declare the
defendant in default and, upon motion of the plaintiff, shall receive evidence ex parte
and render judgment based thereon and the reliefs prayed for. Take note that the
motion is just for the reception of the evidence ex parte (Section 15, Rule 1, Part II, Rules
of Procedure for Environmental Cases).

iii. The defending party must be notified of the motion to declare him in default (Momarco Import
Company, Inc. Villamena, G.R. No. 192477, July 27, 2016).

iv. The claiming party must prove that the defending party failed to file his answer within the time
therefor (Momarco Import Company, Inc. Villamena, G.R. No. 192477, July 27, 2016).

 In some cases, failure to furnish plaintiff with copy of answer is ground for default
(Gonzales vs. Francisco, 49 Phil. 747; Ramirez and Ramirez vs. Court of Appeals, G.R. No.
76366, July 3, 1990). This failure is not, however, fatal because the declaration of
default may be set aside by a timely and proper motion with the requisite affidavit of
merit and provided no loss of time occurs (Banares vs. Flordeliza, et al. 51 Phil. 786).

 A plaintiff who fails or chooses not to answer a COMPULSORY COUNTERCLAIM cannot

be declared in default, principally because the issues raised in the counterclaim are
deemed automatically joined by the allegations in the compliant (Gojo v. Goyala, 35
SCRA 557; Metal Engineering Co. vs. Court of Appeals, G.R. No. 95631, October 28,
1991).

v. There must be a hearing of the motion to declare the defending party in default.

 An order of default cannot be issued moto proprio (Philippine British Co. vs. De Los
Angeles (63 SCRA 50), except in environmental cases.
  As no default could be had without any motion, then if the defendant filed his answer,
albeit belatedly, where no motion is filed yet to declare him in default and/or where
no order is issued yet declaring him in default, and there is no showing that he
intended to delay the case, then his answer should be ADMITTED (Cathay Pacific
Airways, Ltd. vs. Romillo, G.R. No. 64276, March 4, 1986; San Pedro Cineplex Properties,
Inc. vs. Heirs of Manuel Humada Enano, 635 SCRA 421).

“(a) Effect of order of default. — A party in default shall be entitled to notices of

subsequent proceedings but shall not take part in the trial.”

A party in default losses his standing in court. Loss of standing in court is the consequence of an order of default.
He cannot appear therein, adduce evidence and be heard nor take party in trial. He loses his right to present his
defense, control the proceedings and examine the witnesses. He has no right that his pleadings will be acted upon
or to object to evidence (Cavile vs. Florendo, G.R. No. 73039, October 9, 1987). The reception of evidence may
even be delegated by the judge to the clerk of court.

 NOTE, however, that where it is the plaintiff who is declared in default (with respect to the
PERMISSIVE COUNTERCLAIM of the defendant), the plaintiff is not divested of his standing in
court or right to produce evidence on his complaint nor will it per se entitle the defendant to
immediate judgment on the counterclaim (Navarro vs. Bello, 102 Phil. 1019). The consequence,
therefore, is that the plaintiff is not allowed to introduce evidence to oppose defendant’s
PERMISSIVE COUNTERCLAIM once the defendant presents evidence therefor. It is submitted that
the same may happen where the defendant is merely declared in default with respect to a cross-
claim, in that said defendant can still participate in the trial and present evidence to meet or
oppose the main complaint.

 NOTE, further, that a defaulted party is not prohibited nor disqualified from taking the witness
stand and testify for his co-defendants who have not been declared in default. There is no reason
why the non-defaulting defendants should be deprived of the testimony of the party in default
and thereby also suffer the consequences of the latter’s procedural omission (Cavile vs.
Florendo, G.R. No. 73039, October 9, 1987).

 NOTE, furthermore, that in an expropriation proceeding, the defendant who fails to answer may
still present evidence as the amount of compensation to be paid for his property (Section 3, Rule
67 of the Rules of Court).

But while the party in default losses his standing in court, he shall be entitled to notice of subsequent proceedings
but not to take part in the trial (subject, of course, to the exception or qualification as, thus, obtaining the case of
Navarro v. Bello, supra). In other words, a defaulted defendant is not actually thrown out of court (S.C. Johnson &
Sons vs. Court of Appeals, G.R. No. 54040, August 14, 1990).

Rationale:
 The defaulted defendant is entitled to notice of the subsequent proceedings and served with the
subsequent pleadings and orders (although he cannot take part of the trial) is because he still has
the right to appeal in the case and, in his appeal, he may, aside from attacking the propriety of
the relief awarded therein, assign as error the order of the court declaring him in default, or
refusing to set such order of default as the case may be.

NOTE:

The defaulted defendant must be served with amended pleadings and supplemental pleading.
Thus, if the defendant was declared in default upon the original complaint, the filing of the
amended complaint (involving substantial amendments) resulted in the withdrawal of the of the
original complaint, hence, the defaulted defendant is entitled to file an answer to the amended
complaint as to which he was not in default. If the supplemental pleading introduced new claims,
he is entitled to plead thereto as jurisdiction had not been acquired over him with respect
thereto [Florence D. Regalado; Remedial Law Compendium, Volume I, 9TH Revised Edition, p. 191].

“(b) Relief from order of default. — A party declared in default may at any time
after notice thereof and before judgment, file a motion under oath to set aside the
order of default upon proper showing that his or her failure to answer was due to
fraud, accident, mistake or excusable negligence and that he or she has a
meritorious defense. In such case, the order of default may be set aside on such
terms and conditions as the judge may impose in the interest of justice.”

A party who is declared in default is not, however, left without any remedies:

i) Remedy after notice of order of default and before judgment :

At any time after notice of the default order and before judgment, he may file a motion
under oath to set aside the order of default and property show that (a) the failure to answer
was due to FRAUD, ACCIDENT, MISTAKE, OR EXCUSABLE NEGLIGENCE (FAME), and (b) he has
meritorious defense contained in an affidavit of merit (Section 3 (b), Rule 9, Rules of
Amended Procedure; Villareal vs. Court of Appeals, 295 SCRA 511, Lui Enterprises, Inc.
Zuilig Pharma Corporation, G.R. No. 193494).

Thus his motion must be accompanied by a statement of the evidence which he intends to
present if the motion is granted and which is such as to warrant a reasonable belief that the
result of the case would probably be otherwise if a new trial is granted. A default will not be
lifted if the defendant has no valid defense (Development Corp. vs. IAC, 143 SCRA 62).

 In one case, Ponio vs. IAC, 133 SCRA 577, it was held that an affidavit of merit is not
necessary, where a motion to lift the order of default is grounded on the very root
of the proceedings, as when the court has not acquired jurisdiction over the
defendants.
  Also, if the motion to lift an order of default is under oath and contains the reasons
for the failure to answer, as well as his defenses, a separate affidavit of merits is
not necessary (Lim Tanhu, et al. vs. Ramolete, et al., G.R. L-40098, August 29,
1975).

Caveat: It is advisable though to just attach an affidavit of merit to avoid any

technical objection on that matter. Again, it is better to err at the side of caution).

ii) Remedy after judgment and before judgment becomes final and executory :

If the judgment has already been rendered when the defendant discovered the default, but
before the same has become final and executory, he may file a motion for new trial under
Rule 37 of the Rules of Court; OR

If the motion for new trial is denied, or where he did not file one, he may also file an appeal
from and on the merits (from the judgment by default) within the balance of the period for
perfecting an appeal (15 days from notice of the judgment by default, except in habeas
corpus where the period to perfect an appeal is 48 hours), assailing such judgment by default
as being contrary to the evidence or the law and thereby raising, as one of the issues in that
appeal, the propriety of declaring him in default (Lina vs. Court of Appeals, 135 SCRA 637,
Republic vs. Sandiganbayan, 540 SCRA 431).

iii) Remedy after the judgment becomes final and executory :

If he failed to take of any such steps, he could also file a petition for relief under Rule 38,
within 60 days from notice of the judgment but within 6 months from entry thereof (Lina vs.
Court of Appeals, 135 SCRA 637, Republic vs. Sandiganbayan, 540 SCRA 431).

NOTE: An order of default is interlocutory and is not, thus, appealable (Vincilan vs. Vano, 17
SCRA 758). But if the order of default is patently void or improvidently issued, as where the
reglementary period to answer had not yet expired, then CERTIORARI will lie even without
waiting for the default judgment (Viacrusis vs. Estenzo, L-18457, June 30, 1962). Where a default
judgment was already rendered, he can also resort immediately to certiorari to challenge both
the order of default and the judgment by default, not necessarily the merits or correctness of the
judgment (Matute vs. Court of Appeals, et al., L-26751, Jan. 3, 1969), especially where a writ of
execution was already issued, hence appeal would not be a speedy and adequate remedy (Zenith
Insurance Corp. vs. Purisima, et al., G.R. No. 57535, May 24, 1982).

Courts, however, should be liberal in setting aside orders in default, for a default judgment is frowned upon and
are not looked upon with favor for such judgment may amount to a positive and considerable injustice to the
defendant and the possibility of such serious consequences necessitates a careful examination of the grounds
upon which the defendant asks that it be set aside (Montinola vs. Planters Bank, G.R. No. 66183, May 4, 1988).
After all, default is not a mechanical gadget to accelerate judicial litigations (Fuentes vs. Macandog, 83 SCRA 648).
Interestingly, in the case of Republic vs. Sandiganbayan, 540 SCRA 431, our Supreme Court enunciated that there
is such thing as IMPLIED LIFTING of an order of default. In that case, former President Marcos was declared in
default for failure to file an answer. His representatives failed to file a motion to order the order of default, but his
son, Ferdinand Marcos, Jr., and as executor of his father’s estate, filed a motion for leave to file a responsive
pleading and three motions for extension of time to file an answer which where all granted by the Sandiganbayan.
Ferdinand Marcos, Jr. also filed a motion for bill of particulars which was also granted. Given such factual
backdrop, our Supreme Court held, thus:
“While it is true that there was no positive act on the part of the court to lift the
default order because there was no motion nor order to that effect, the anti-graft
court’s act of granting respondent the opportunity to file a responsive pleading
meant the lifting of the default order on terms the court deemed proper in the
interest of justice. It was the operative act lifting the default order and thereby
reinstating the position of the original defendant whom respondent is
representing, founded on the court’s discretionary power to set aside orders of
default.”

If the court sets aside the order of default, the defendant is restored to his standing and rights in the action.
However, proceedings already taken are not to be disturbed (Jaime vs. Maniego, 101 Phil. 828), although it is
within the discretion of the court to re-open the evidence submitted by the plaintiff and enable the defendant to
challenge the same, as by cross-examination of plaintiff’s witnesses or introducing countervailing evidence (Denso,
Inc. vs. IAC, et al., G.R. No. 7500, February 27, 1987). The lifting of an order of default does not revert the case to
its pre-trial stage, much less render a second pre-trial mandatory (DBP vs. Court of Appeals, L-49410, Jan. 26,
1989).

“(c) Effect of partial default. — When a pleading asserting a claim states a common
cause of action against several defending parties, some of whom answer and the
others fail to do so, the court shall try the case against all upon the answers thus
filed and render judgment upon the evidence presented.”

A party in default loses his standing in court. But where there are several defendants in a case and some of them
file their answer while one or a few of them are declared in default, the answer thus filed may inure to the
advantage of the defaulted defendant(s) if (1) the complaint asserting a claim states a COMMON CAUSE OF ACTON
against the defendants, and (2) all the defendants are indispensable parties to the case (Imson vs. Court of
Appeals, G.R No. 106436, December 3, 1994).

Example:

“X” filed case for recovery of a parcel of land against “A”, “B”, and “C”, the three being siblings
and who all occupied the litigated parcel of land under claim, and in the concept, of co-
ownership having allegedly. “A” and “B” jointly filed an answer, but “C” did not file join with
them in filing that answer, much less has he filed a separate answer to the complaint. Even if “C”
 is declared in default, he would stand to be benefited by the answer filed by his siblings, “A” and
“B”.

Thus, in the above, situation, if the answering defendants, “A” and “B”, succeed in defeating the “X’s” claim, such
positive result inures also to the benefit of “C” (Bringas vs. Hernando, G.R. No. 51933, September 24, 1986).

But where both the answering defendants, “A” and “B”, died during the pendency of the action such that the case
is dismissed as to the both of them, the answer that they filed would not inure to the advantage of “C”. The same
rule applies where the defenses alleged by “A” and “B” are personal to them, as when, for example, they both
alleged that they were but actually forced or coerced by “C” to likewise enter and occupy the property (by
analogy, see Luzon Surety vs. Magbanua, 72 SCRA 255).

“(d) Extent of relief to be awarded. — A judgment rendered against a party in

default shall neither exceed the amount or be different in kind from that prayed for
nor award unliquidated damages.”

If the evidence presented against the defendant should not justify a judgment for the party, the claim must be
dismissed. And if an unfavorable judgment against the defaulted defending party be justifiable, it cannot, however,
exceed in amount or different from what is prayed for in the complaint or pleading asserting a claim, and the
prohibition holds true even if the complainant is able to prove during the reception of evidence a higher amount of
damages (Keller vs. GOB Group Marketing, 141 SCRA 86).

It is, however, suggested that while the above provision mentions about “unliquidated damages” (not stipulated by
the parties), the rule does not altogether prohibit an award for unliquidated damages for as long as the amount
thereof is specified in the complaint and supported by the evidence.

“(e) Where no defaults allowed. — If the defending party in an action for annulment
or declaration of nullity of marriage or for legal separation fails to answer, the court
shall order the Solicitor General or his or her deputized public prosecutor, to
investigate whether or not a collusion between the parties exists, and if there is no
collusion, to intervene for the State in order to see to it that the evidence submitted
is not fabricated.”

As stated under Section 3(e), Rule 9 of the Amended Rules, default is not allowed in the following:

1. Annulment of marriage;
2. Declaration of nullity of marriage;
3. Legal separation

In the above-mentioned cases, if the respondent failed to file an answer, the court shall not, as it cannot, issue an
order declaring the respondent in default, in that the court will just order the Solicitor General or his or her
deputized public prosecutor, to investigate whether or not a collusion between the parties exists, and if there is no
collusion, to intervene for the State in order to see to it that the evidence submitted is not fabricated. In other
words, there will be reception of evidence ex parte, without the court issuing, as it cannot issue, an order of
default.

In the following cases also, there will be reception of evidence ex parte after the defendant or respondent fails to
file an answer, without the court having to issue, as it cannot issue, an order of default for the reason that the filing
of a motion for default is prohibited therein, viz:

1. Small claims cases (Section 14, A.M. No. 08-8-7-SC, Rules of Procedure for Small Claims Cases as
amended);
2. Writ of Amparo cases (Section 11(h), Rules on the Writ of Amparo);
3. Writ of Habeas Data cases (Section 13(h), Rules on the Writ of Habeas Data); and
4. Case governed by the Rules on Summary Procedure (Section 19(h) of the 1991 Revised Rules on
Summary Procedure).