G.R. No.

185145               February 5, 2014

SPOUSES VICENTE AFULUGENCIA and LETICIA AFULUGENCIA, Petitioners,

vs.
METROPOLITAN BANK & TRUST CO. and EMMANUEL L. ORTEGA, Clerk of Court,
Regional Trial Court and Ex-Officio Sheriff, Province of Bulacan, Respondents.

DECISION

DEL CASTILLO, J.:

Section 6,  Rule 25 of the Rules of Court (Rules) provides that "a party not served with
1

written interrogatories may not be compelled by the adverse party to give testimony in open
court, or to give a deposition pending appeal." The provision seeks to prevent fishing
expeditions and needless delays. Its goal is to maintain order and facilitate the conduct of
trial.

Assailed in this Petition for Review on Certiorari  are the April 15, 2008 Decision  of the
2 3

Court of Appeals (CA) in CA-G.R. SP No. 99535 which dismissed petitioners' Petition for
Certiorari for lack of merit and its October 2, 2008 Resolution  denying petitioners' Motion for
4

Reconsideration. 5

Factual Antecedents

Petitioners, spouses Vicente and Leticia Afulugencia, filed a Complaint  for nullification of
6

mortgage, foreclosure, auction sale, certificate of sale and other documents, with damages,
against respondents Metropolitan Bank & Trust Co. (Metrobank) and Emmanuel L. Ortega
(Ortega) before the Regional Trial Court (RTC) of Malolos City, where it was docketed as
Civil Case No. 336-M-2004 and assigned to Branch 7.

Metrobank is a domestic banking corporation existing under Philippine laws, while Ortega is
the Clerk of Court and Ex-Officio Sheriff of the Malolos RTC.

After the filing of the parties’ pleadings and with the conclusion of pre-trial, petitioners filed a
Motion for Issuance of Subpoena Duces Tecum Ad Testificandum  to require Metrobank’s
7

officers  to appear and testify as the petitioners’ initial witnesses during the August 31, 2006
8

hearing for the presentation of their evidence-in-chief, and to bring the documents relative to
their loan with Metrobank, as well as those covering the extrajudicial foreclosure and sale of
petitioners’ 200-square meter land in Meycauayan, Bulacan covered by Transfer Certificate
of Title No. 20411 (M). The Motion contained a notice of hearing written as follows:

NOTICE

The Branch Clerk of Court

Regional Trial Court
Branch 7, Malolos, Bulacan

Greetings:
Please submit the foregoing motion for the consideration and approval of the Hon. Court
immediately upon receipt hereof.

(signed)
Vicente C. Angeles 9

Metrobank filed an Opposition  arguing that for lack of a proper notice of hearing, the
10

Motion must be denied; that being a litigated motion, the failure of petitioners to set a date
and time for the hearing renders the Motion ineffective and pro forma; that pursuant to
Sections 1 and 6  of Rule 25 of the Rules, Metrobank’s officers – who are considered
11

adverse parties – may not be compelled to appear and testify in court for the petitioners
since they were not initially served with written interrogatories; that petitioners have not
shown the materiality and relevance of the documents sought to be produced in court; and
that petitioners were merely fishing for evidence.

Petitioners submitted a Reply  to Metrobank’s Opposition, stating that the lack of a proper
12

notice of hearing was cured by the filing of Metrobank’s Opposition; that applying the
principle of liberality, the defect may be ignored; that leave of court is not necessary for the
taking of Metrobank’s officers’ depositions; that for their case, the issuance of a subpoena is
not unreasonable and oppressive, but instead favorable to Metrobank, since it will present
the testimony of these officers just the same during the presentation of its own evidence;
that the documents sought to be produced are relevant and will prove whether petitioners
have paid their obligations to Metrobank in full, and will settle the issue relative to the
validity or invalidity of the foreclosure proceedings; and that the Rules do not prohibit a party
from presenting the adverse party as its own witness.

Ruling of the Regional Trial Court

On October 19, 2006, the trial court issued an Order  denying petitioners’ Motion for
13

Issuance of Subpoena Duces Tecum Ad Testificandum, thus:

The motion lacks merit.

As pointed out by the defendant bank in its opposition, the motion under consideration is a
mere scrap of paper by reason of its failure to comply with the requirements for a valid
notice of hearing as specified in Sections 4 and 5 of Rule 15 of the Revised Rules of Court.
Moreover, the defendant bank and its officers are adverse parties who cannot be
summoned to testify unless written interrogatories are first served upon them, as provided in
Sections 1 and 6, Rule 25 of the Revised Rules of Court.

In view of the foregoing, and for lack of merit, the motion under consideration is hereby
DENIED.

SO ORDERED. 14

Petitioners filed a Motion for Reconsideration  pleading for leniency in the application of the
15

Rules and claiming that the defective notice was cured by the filing of Metrobank’s
Opposition, which they claim is tantamount to notice. They further argued that Metrobank’s
officers – who are the subject of the subpoena – are not party-defendants, and thus do not
comprise the adverse party; they are individuals separate and distinct from Metrobank, the
defendant corporation being sued in the case.

In an Opposition  to the Motion for Reconsideration, Metrobank insisted on the procedural
16

defect of improper notice of hearing, arguing that the rule relative to motions and the
requirement of a valid notice of hearing are mandatory and must be strictly observed. It
added that the same rigid treatment must be accorded to Rule 25, in that none of its officers
may be summoned to testify for petitioners unless written interrogatories are first served
upon them. Finally, it said that since a corporation may act only through its officers and
employees, they are to be considered as adverse parties in a case against the corporation
itself.

In another Order  dated April 17, 2007, the trial court denied petitioners’ Motion for
17

Reconsideration. The trial court held, thus:

Even if the motion is given consideration by relaxing Sections 4 and 5, Rule 15 of the Rules
of Court, no such laxity could be accorded to Sections 1 and 6 of Rule 25 of the Revised
Rules of Court which require prior service of written interrogatories to adverse parties before
any material and relevant facts may be elicited from them more so if the party is a private
corporation who could be represented by its officers as in this case. In other words, as the
persons sought to be subpoenaed by the plaintiffs-movants are officers of the defendant
bank, they are in effect the very persons who represent the interest of the latter and
necessarily fall within the coverage of Sections 1 and 6, Rule 25 of the Revised Rules of
Court.

In view of the foregoing, the motion for reconsideration is hereby denied.

SO ORDERED. 18

Ruling of the Court of Appeals

Petitioners filed a Petition for Certiorari  with the CA asserting this time that their Motion for
19

Issuance of Subpoena Duces Tecum Ad Testificandum is not a litigated motion; it does not
seek relief, but aims for the issuance of a mere process. For these reasons, the Motion
need not be heard. They likewise insisted on liberality, and the disposition of the case on its
merits and not on mere technicalities.  They added that Rule 21  of the Rules requires prior
20 21

notice and hearing only with respect to the taking of depositions; since their Motion sought
to require Metrobank’s officers to appear and testify in court and not to obtain their
depositions, the requirement of notice and hearing may be dispensed with. Finally,
petitioners claimed that the Rules – particularly Section 10,  Rule 132 – do not prohibit a
22

party from presenting the adverse party as its own witness.

On April 15, 2008, the CA issued the questioned Decision, which contained the following
decretal portion:
WHEREFORE, the petition is DISMISSED for lack of merit. The assailed orders dated
October 19, 2006 and April 17, 2007 in Civil Case No. 336-M-2004 issued by the RTC,
Branch 7, Malolos City, Bulacan, are AFFIRMED. Costs against petitioners.

SO ORDERED. 23

The CA held that the trial court did not commit grave abuse of discretion in issuing the
assailed Orders; petitioners’ Motion is a litigated motion, especially as it seeks to require the
adverse party, Metrobank’s officers, to appear and testify in court as petitioners’ witnesses.
It held that a proper notice of hearing, addressed to the parties and specifying the date and
time of the hearing, was required, consistent with Sections 4 and 5,  Rule 15 of the Rules.
24

The CA held further that the trial court did not err in denying petitioners’ Motion to secure a
subpoena duces tecum/ad testificandum, ratiocinating that Rule 25 is quite clear in
providing that the consequence of a party’s failure to serve written interrogatories upon the
opposing party is that the latter may not be compelled by the former to testify in court or to
render a deposition pending appeal. By failing to serve written interrogatories upon
Metrobank, petitioners foreclosed their right to present the bank’s officers as their
witnesses.

The CA declared that the justification for the rule laid down in Section 6 is that by failing to
seize the opportunity to inquire upon the facts through means available under the Rules,
petitioners should not be allowed to later on burden Metrobank with court hearings or other
processes. Thus, it held:

x x x Where a party unjustifiedly refuses to elicit facts material and relevant to his case by
addressing written interrogatories to the adverse party to elicit those facts, the latter may not
thereafter be compelled to testify thereon in court or give a deposition pending appeal. The
justification for this is that the party in need of said facts having foregone the opportunity to
inquire into the same from the other party through means available to him, he should not
thereafter be permitted to unduly burden the latter with courtroom appearances or other
cumbersome processes. The sanction adopted by the Rules is not one of compulsion in the
sense that the party is being directly compelled to avail of the discovery mechanics, but one
of negation by depriving him of evidentiary sources which would otherwise have been
accessible to him. 25

Petitioners filed their Motion for Reconsideration,  which the CA denied in its assailed
26

October 2, 2008 Resolution. Hence, the present Petition.

Issues

Petitioners now raise the following issues for resolution:

THE COURT OF APPEALS COMMITTED REVERSIBLE ERRORS IN REQUIRING

NOTICE AND HEARING (SECS. 4 AND 5, RULE 15, RULES OF COURT) FOR A MERE
MOTION FOR SUBPOENA OF RESPONDENT BANK’S OFFICERS WHEN SUCH
REQUIREMENTS APPLY ONLY TO DEPOSITION UNDER SEC. 6, RULE 25, RULES OF
COURT.

II

THE COURT OF APPEALS COMMITTED (REVERSIBLE) ERROR IN HOLDING THAT

THE PETITIONERS MUST FIRST SERVE WRITTEN INTERROGATORIES TO
RESPONDENT BANK’S OFFICERS BEFORE THEY CAN BE SUBPOENAED. 27

Petitioners’ Arguments

Praying that the assailed CA dispositions be set aside and that the Court allow the issuance
of the subpoena duces tecum/ad testificandum, petitioners assert that the questioned
Motion is not a litigated motion, since it seeks not a relief, but the issuance of process. They
insist that a motion which is subject to notice and hearing under Sections 4 and 5 of Rule 15
is an application for relief other than a pleading; since no relief is sought but just the process
of subpoena, the hearing and notice requirements may be done away with. They cite the
case of Adorio v. Hon. Bersamin,  which held that –
28

Requests by a party for the issuance of subpoenas do not require notice to other parties to
the action.  No violation of due process results by such lack of notice since the other parties
1âwphi1

would have ample opportunity to examine the witnesses and documents subpoenaed once
they are presented in court. 29

Petitioners add that the Rules should have been liberally construed in their favor, and that
Metrobank’s filing of its Opposition be considered to have cured whatever defect the Motion
suffered from.

Petitioners likewise persist in the view that Metrobank’s officers – the subject of the Motion
– do not comprise the adverse party covered by the rule; they insist that these bank officers
are mere employees of the bank who may be called to testify for them.

Respondents’ Arguments

Metrobank essentially argues in its Comment  that the subject Motion for the issuance of a
30

subpoena duces tecum/ad testificandum is a litigated motion, especially as it is directed

toward its officers, whose testimony and documentary evidence would affect it as the
adverse party in the civil case. Thus, the lack of a proper notice of hearing renders it
useless and a mere scrap of paper. It adds that being its officers, the persons sought to be
called to the stand are themselves adverse parties who may not be compelled to testify in
the absence of prior written interrogatories; they are not ordinary witnesses whose presence
in court may be required by petitioners at any time and for any reason.

Finally, Metrobank insists on the correctness of the CA Decision, adding that since
petitioners failed up to this time to pay the witnesses’ fees and kilometrage as required by
the Rules,  the issuance of a subpoena should be denied.
31
 Our Ruling

The Court denies the Petition.

On the procedural issue, it is quite clear that Metrobank was notified of the Motion for
Issuance of Subpoena Duces Tecum Ad Testificandum; in fact, it filed a timely Opposition
thereto. The technical defect of lack of notice of hearing was thus cured by the filing of the
Opposition. 32

Nonetheless, contrary to petitioners’ submission, the case of Adorio cannot apply squarely
to this case. In Adorio, the request for subpoena duces tecum was sought against bank
officials who were not parties to the criminal case for violation of Batas Pambansa Blg. 22.
The situation is different here, as officers of the adverse party Metrobank are being
compelled to testify as the calling party’s main witnesses; likewise, they are tasked to bring
with them documents which shall comprise the petitioners’ principal evidence. This is not
without significant consequences that affect the interests of the adverse party, as will be
shown below.

As a rule, in civil cases, the procedure of calling the adverse party to the witness stand is
not allowed, unless written interrogatories are first served upon the latter. This is embodied
in Section 6, Rule 25 of the Rules, which provides –

Sec. 6. Effect of failure to serve written interrogatories.

Unless thereafter allowed by the court for good cause shown and to prevent a failure of
justice, a party not served with written interrogatories may not be compelled by the adverse
party to give testimony in open court, or to give a deposition pending appeal.

One of the purposes of the above rule is to prevent fishing expeditions and needless delays;
it is there to maintain order and facilitate the conduct of trial. It will be presumed that a party
who does not serve written interrogatories on the adverse party beforehand will most likely
be unable to elicit facts useful to its case if it later opts to call the adverse party to the
witness stand as its witness. Instead, the process could be treated as a fishing expedition or
an attempt at delaying the proceedings; it produces no significant result that a prior written
interrogatories might bring.

Besides, since the calling party is deemed bound by the adverse party’s
testimony,  compelling the adverse party to take the witness stand may result in the calling
33

party damaging its own case. Otherwise stated, if a party cannot elicit facts or information
useful to its case through the facility of written interrogatories or other mode of discovery,
then the calling of the adverse party to the witness stand could only serve to weaken its own
case as a result of the calling party’s being bound by the adverse party’s testimony, which
may only be worthless and instead detrimental to the calling party’s cause.

Another reason for the rule is that by requiring prior written interrogatories, the court may
limit the inquiry to what is relevant, and thus prevent the calling party from straying or
harassing the adverse party when it takes the latter to the stand.
Thus, the rule not only protects the adverse party from unwarranted surprises or
harassment; it likewise prevents the calling party from conducting a fishing expedition or
bungling its own case. Using its own judgment and discretion, the court can hold its own in
resolving a dispute, and need not bear witness to the parties perpetrating unfair court
practices such as fishing for evidence, badgering, or altogether ruining their own cases.
Ultimately, such unnecessary processes can only constitute a waste of the court’s precious
time, if not pointless entertainment.

In the present case, petitioners seek to call Metrobank’s officers to the witness stand as
their initial and main witnesses, and to present documents in Metrobank’s possession as
part of their principal documentary evidence. This is improper. Petitioners may not be
allowed, at the incipient phase of the presentation of their evidence-in-chief at that, to
present Metrobank’s officers – who are considered adverse parties as well, based on the
principle that corporations act only through their officers and duly authorized agents  – as
34

their main witnesses; nor may they be allowed to gain access to Metrobank’s documentary
evidence for the purpose of making it their own. This is tantamount to building their whole
case from the evidence of their opponent. The burden of proof and evidence falls on
petitioners, not on Metrobank; if petitioners cannot prove their claim using their own
evidence, then the adverse party Metrobank may not be pressured to hang itself from its
own defense.

It is true that under the Rules, a party may, for good cause shown and to prevent a failure of
justice, be compelled to give testimony in court by the adverse party who has not served
written interrogatories. But what petitioners seek goes against the very principles of justice
and fair play; they would want that Metrobank provide the very evidence with which to
prosecute and build their case from the start. This they may not be allowed to do.

Finally, the Court may not turn a blind eye to the possible consequences of such a move by
petitioners. As one of their causes of action in their Complaint, petitioners claim that they
were not furnished with specific documents relative to their loan agreement with Metrobank
at the time they obtained the loan and while it was outstanding. If Metrobank were to
willingly provide petitioners with these documents even before petitioners can present
evidence to show that indeed they were never furnished the same, any inferences
generated from this would certainly not be useful for Metrobank. One may be that by
providing petitioners with these documents, Metrobank would be admitting that indeed, it did
not furnish petitioners with these documents prior to the signing of the loan agreement, and
while the loan was outstanding, in violation of the law.

With the view taken of the case, the Court finds it unnecessary to further address the other
issues raised by the parties, which are irrelevant and would not materially alter the
conclusions arrived at.

WHEREFORE, the Petition is DENIED. The assailed April 15, 2008 Decision and October
2, 2008 Resolution of the Court of Appeals in CA-G.R. SP No. 99535 are AFFIRMED.

SO ORDERED.
MARIANO C. DEL CASTILLO
Associate Justice

WE CONCUR:

ANTONIO T. CARPIO
Associate Justice
Chairperson

ARTURO D. BRION JOSE PORTUGAL PEREZ

Associate Justice Associate Justice

ESTELA M. PERLAS-BERNABE
Associate Justice

ATTESTATION

I attest that the conclusions in the above Decision had been reached in consultation before
the case was assigned to the writer of the opinion of the Court's Division.

ANTONIO T. CARPIO
Associate Justice
Chairperson

CERTIFICATION

Pursuant to Section 13, Article VIII of the Constitution and the Division Chairperson's
Attestation, I certify that the conclusions in the above Decision had been reached in
consultation before the case was assigned to the writer of the opinion of the Court's
Division.

MARIA LOURDES P. A. SERENO

Chief Justice

Footnotes

 Sec. 6. Effect of failure to serve written interrogatories. - Unless thereafter allowed

1

by the court for good cause shown and to prevent a failure of justice, a party not
served with written interrogatories may not be complelled by the adverse party to
give testimony in open court, or to give a deposition pending appeal.

 Rollo, pp. 11-24.

2
 CA rollo, pp. 297-306; penned by Associate Justice Hakim S. Abdulwahid and
3

concurred in by Associate Justices Rodrigo V. Cosico and Mariflor P. Punz.alan

Castillo.

 Id. at 333; penned by Associate Justice Hakim S. Abdulwahid and concurred in by

4

Associate Justices Mariflor P. Punz.alan Castillo and Ramon M. Bato, Jr.

 Id. at 309-316.
5

 Id. at 17-23.
6

 Id. at 74-75.
7

 Specifically, Oscar L. Abendan, Senior Manager; O.L. Cajucom, Assistant Manager;

8

and B.C. T. Reyes, Assistant Manager.

 CA rollo, pp. 75-76.

9

10
 Id. at 77-82.

11
 Which provide, thus:

RULE 25
INTERROGATORIES TO PARTIES

Section 1. Interrogatories to parties; service thereof.

Under the same conditions specified in Section 1 of Rule 23, any party
desiring to elicit material and relevant facts from any adverse parties shall file
and serve upon the latter written interrogatories to be answered by the party
served or, if the party served is a public or private corporation or a partnership
or association, by any officer thereof competent to testify in its behalf.

Sec. 6. Effect of failure to serve written interrogatories.

Unless thereafter allowed by the court for good cause shown and to prevent a
failure of justice, a party not served with written interrogatories may not be
compelled by the adverse party to give testimony in open court, or to give a
deposition pending appeal.

12
 CA rollo, pp. 83-88.

13
 Rollo, pp. 17, 28, 54, 171-172.

14
 Id. at 54.

15
 CA rollo, pp. 217-222.
16
 Id. at 222-227.

17
 Rollo, pp. 184-185.

18
 Id. at 185.

19
 CA rollo, pp. 2-15.

 Citing the cases of Vlason Enterprises Corporation v. Court of Appeals, 369 Phil.
20

269 (1999); People v. Hon. Leviste, 325 Phil. 525 (1996); Adorio v. Hon. Bersamin,
339 Phil. 411 (1997); and E&L Mercantile, Inc. v. Intermediate Appellate Court, 226
Phil. 299 (1986).

21
 Which provides as follows:

RULE 21
SUBPOENA

Section 1. Subpoena and subpoena duces tecum.

Subpoena is a process directed to a person requiring him to attend and to

testify at the hearing or the trial of an action, or at any investigation conducted
by competent authority, or for the taking of his deposition. It may also require
him to bring with him any books, documents, or other things under his control,
in which case it is called a subpoena duces tecum.

xxxx

Sec. 5. Subpoena for depositions.

Proof of service of a notice to take a deposition, as provided in sections 15

and 25 of Rule 23, shall constitute sufficient authorization for the issuance of
subpoenas for the persons named in said notice by the clerk of the court of
the place in which the deposition is to be taken. The clerk shall not, however,
issue a subpoena duces tecum to any such person without an order of the
court.

22
 Which states:

RULE 132
PRESENTATION OF EVIDENCE

A. EXAMINATION OF WITNESSES

xxxx
 Sec. 10. Leading and misleading questions. — A question which suggests to
the witness the answer which the examining party desires is a leading
question. It is not allowed, except:

xxxx

(e) Of a witness who is an adverse party or an officer, director, or managing

agent of a public or private corporation or of a partnership or association
which is an adverse party.

A misleading question is one which assumes as true a fact not yet testified to
by the witness, or contrary to that which he has previously stated. It is not
allowed.

23
 CA rollo, p. 305.

24
 Which state, as follows:

RULE 15
MOTIONS

xxxx

Sec. 4. Hearing of motion.

Except for motions which the court may act upon without prejudicing the
rights of the adverse party, every written motion shall be set for hearing by
the applicant.

Every written motion required to be heard and the notice of the hearing
thereof shall be served in such a manner as to ensure its receipt by the other
party at least three (3) days before the date of hearing, unless the court for
good cause sets the hearing on shorter notice.

Sec. 5. Notice of hearing.

The notice of hearing shall be addressed to all parties concerned, and shall
specify the time and date of the hearing which must not be later than ten (10)
days after the filing of the motion.

 CA rollo, p. 305, citing Regalado, Remedial Law Compendium, Volume I, Eighth
25

Revised Ed., 2002, pp. 333-334.

26
 Id. at 309-316.

27
 Rollo, pp. 16, 20.

28
 Supra note 20.
29
 Id. at 419.

30
 Rollo, pp. 48-82.

31
 Citing the following Rule:

RULE 21
SUBPOENA

xxxx

Sec. 4. Quashing a subpoena.

The court may quash a subpoena duces tecum upon motion promptly made
and, in any event, at or before the time specified therein if it is unreasonable
and oppressive, or the relevancy of the books, documents or things does not
appear, or if the person in whose behalf the subpoena is issued fails to
advance the reasonable cost of the production thereof.

The court may quash a subpoena ad testificandum on the ground that the
witness is not bound thereby. In either case, the subpoena may be quashed
on the ground that the witness fees and kilometrage allowed by these Rules
were not tendered when the subpoena was served.

 See United Features Syndicate, Inc. v. Munsingwear Creation Manufacturing

32

Company, 258-A Phil. 841, 847 (1989).

33
 Gaw v. Chua, G.R. No. 160855, April 16, 2008, 551 SCRA 505, 517.

 BA Savings Bank v. Sia, 391 Phil. 370, 377 (2000); Restaurante Las Conchas v.
34

Llego, 372 Phil. 697, 708 (1999).