R6-6 Ballecer vs. Bernardo

R6-#06 Civil Procedure (Rule 6)
COUNTERCLAIM
Ballecer and Agawin vs. Bernardo and Judge Morfe

G.R. No. L-21766 (September 30, 1966)
Concepcion, C.J.
A counterclaim is independent and with a distinct cause of action; If inseparable with the cause of action of Plaintiff, plaintiff need not answer the counterclaim
FACTS: On May 4, 1960, spouses Jose S. Agawin and Felicisima Ballecer instituted a civil case against Jose Bernardo, to recover damages allegedly
caused by him in consequence of the destruction and demolition of a portion of a wall of the petitioners, along the common boundary line of their lot
and that of Bernardo, at Felix Huertas Street, Manila, as well as to recover possession of a portion of petitioners' aforementioned lot, with an area of
0.80 square meters, which was allegedly encroached upon by the wall subsequently erected by Bernardo in place of the one he had destroyed.
Bernardo filed his answer denying petitioners' averments, and alleging, in turn, that the demolition and destruction made by him had taken place
within the boundary of his own property. By way of counterclaim, Bernardo set up two (2) causes of action, namely: (1) that petitioners were the
parties who had encroached upon and occupied a portion of Bernardo's property, with an area of about 3.70 square meters, without his consent and
against his will, and (2) that petitioners' complaint is premature, uncalled for, capricious and without any justifiable cause, for which reason Bernardo
prayed that they be sentenced to vacate his aforementioned portion of land allegedly encroached upon by them and to turn it over to him, and to pay
damages aggregating P48,000.00.
CFI of Manila – civil action for damages filed by Ballecer. Bernardo answered with a counterclaim. Ballecer failed to answer the counterclaim ( ex parte
motion for extension to answer was denied). Bernardo presented his evidences and the court ruled in his favor, ruling in this wise:
WHEREFORE, the Court hereby renders judgment on the counterclaim in favor of the defendant-counterclaimant and against the plaintiffs, as follows:
1. Ordering the plaintiffs and/or their agents and representatives including all persons claiming under them to deliver and restore the possession thereof to the
defendant, that portion of said defendant's property consisting of 3.7 square meters which is being encroached upon and occupied by or in possession of the plaintiffs;
2. Ordering plaintiffs to pay, jointly and severally, the defendant the following sums, to wit:
(a) P3,625.00 as compensatory damages which the defendant failed to realize in the form of rentals from that portion of his property subject matter of the
counterclaim, corresponding to the period from May, 1948 to May, 1960, with interest thereon at the legal rate from the date of filing of the answer with counterclaim
until fully paid; plus the sum of P25.00 for each month thereafter until the premises in question are actually delivered to the possession and occupation of the
defendant;
(b) P541.00 as actual damages incurred by the defendant;
(c) P10,000.00 as moral damages;
(d) P2,000.00 as exemplary damages; and
(e) P1,000.00 as attorney's fees.
With costs against the plaintiffs.
After several motions for reconsideration were denied, Ballecer and Agawin appealed the decision (no mention as to which court, maybe CA) and this
court ordered the issuance of a writ of execution, but later on, the execution of the decision was ordered stayed pending trial on the merits on Ballecer
and Agawin’s complaint.
2015 BANGSAMORO DIGEST GUILD (AUF, JD – est. 2013) Page 1 of 2

R6-#06 Civil Procedure (Rule 6)
COUNTERCLAIM
Thereafter, on motion of Bernardo, said order was, set aside and the issuance of a writ of execution "only as to paragraph No. 1 and paragraph No. 2-a
of the dispositive part" of the aforementioned decision, was ordered
ISSUE/s: WON the lower court has gravely abused its discretion in declaring the petitioners in default and in rendering judgment against them on
Bernardo's counterclaim after an ex parte hearing.
HELD: YES.
RATIO: To begin with, a motion for extension of time to file an answer to the counterclaim had been filed within the reglementary period and plausible
reasons were given in support thereof: counsel for petitioners had been unable to contact them owing to a typhoon that had just hit Manila, and the
flood and inclement weather that had followed.
The main reason for the lower court's adverse action thereon would seem to be petitioners' failure to set it for hearing as provided in the Rules of
Court. But, there are motions that may be heard and granted ex parte, and petitioners' aforementioned motion belongs to such class. Thus in Moya v.
Barton (76 Phil. 831, 833) it was held:
With respect to the other ground, Section 2 of Rule 27 provides that "every motion other than one which may be heard ex-parte . . . . shall be filed with the Court, and
served upon the parties affected thereby." Taking into consideration that the extension of time applied for may be shorter than the time required to have a motion set
for hearing and acted on by the court, and that the court has, as above stated, discretion to grant the petition, the motion for extension filed in the present case may
be considered as one which may be heard ex-parte. . . . .."
What is more, Bernardo's counterclaim was predicated upon allegations of fact which are inconsistent with, and, hence, controverted by, the
allegations in petitioners' complaint. In this connection, it should be noted that Bernardo had, according to the complaint, encroached upon
petitioners' property, whereas Bernardo maintained the exact opposite in his counterclaim — not only that petitioners' allegation was not true, but,
also, that they were the ones encroaching upon the property of Bernardo. Certainly, this contention, of Bernardo cannot be decided without passing
upon the truth of the allegations in the complaint, which petitioners are entitled to prove, whether they had answered Bernardo's counterclaim or not.
In other words, the issues raised in the counterclaim were inseparable from those posed in the complaint, and so it was not absolutely necessary for
the petitioners to file an answer to the counterclaim (Arejola vs. Cayetano, L-6673, Sept. 8, 1954; Rosario vs. Martinez, L-4473, Sept. 30, 1952).
To answer, as stated by Justice JBL Reyes, “would require plaintiffs to replead the same facts already alleged in their complaint.”
RULING: [T]he orders complained of, as well as said writ of execution and alias writ of execution, and the notice of sale adverted to above, including
the decision of June 20, 1960, are hereby annulled and set aside, and the writ of preliminary injunction heretofore issued by this Court is,
accordingly, made permanent, with costs against herein respondent Jose Bernardo.
- Michael Joseph Nogoy
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R6-#06 Civil Procedure (Rule 6)

Ballecer and Agawin vs. Bernardo and Judge Morfe

2015 BANGSAMORO DIGEST GUILD (AUF, JD – est. 2013) Page 1 of 2

- Michael Joseph Nogoy

2015 BANGSAMORO DIGEST GUILD (AUF, JD – est. 2013) Page 2 of 2

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