1|P age NOTES IN CIVIL PROCEDURE II Bem Jamison

PRELIMINARY INJUNCTION (RULE 58) Status quo order/ Status quo ante order
• An order intended to maintain the last, actual,
PRELIMINARY INJUNCTION peaceable and uncontested state of things which
• Is an order granted at any stage of an action, preceded the controversy.
prior to the judgment or final order, requiring a • More of a cease and desist order (as opposed to
party, court, agency or person to perform or a TRO or a preliminary injunction) since it neither
refrain from performing a particular act or acts. directs the doing or undoing of acts as in the
• Prohibitory: If it is availed of to require one to case of prohibitory or mandatory injunctive
refrain from a particular act. relief.
• Mandatory: If it requires the performance of a
GRANT OF A WRIT OF PRELIMINARY INJUNCTION
particular act or acts.
• NOT a judgment based on merits of the case.
• OBJECTIVE: Whether prohibitory or mandatory,
• Generally based solely on initial and incomplete
the objective is to maintain the prevailing state
evidence.
of affairs of the parties prior to the controversy.
Its purpose is to preserve the status quo of the • The evidence submitted during the hearing for a
matter subject of the action to protect the rights writ of preliminary injunction is NOT conclusive
of the plaintiff during the pendency of the suit. or complete, for ONLY SAMPLING is needed to
give the court an idea of the justification for the
• Example: If one’s land is threatened to be
preliminary injunction pending decision of the
occupied by another unlawfully.
case.
• Main action: Action for Injunction
• The grant or denial of the writ is DISCRETIONARY
• Provisional Remedy: Prayer for the
upon the trial court. The exercise of judicial
issuance of preliminary prohibitory
discretion by the trial court in injunctive matters
injunction
must not be interfered with except when there
• Effect: Defendant will be prevented
is manifest abuse.
from performing acts of dispossession in
the meantime while the main action is
WHEN GRANTED
pending.
• At any stage of the action or proceeding, prior to
• Example: If the land of the rightful possessor had
the judgment or final order.
been occupied by force
• Main action: Forcible Entry
KINDS OF PRELIMINARY INJUNCTION
• Provisional Remedy: Prayer for the
1. Prohibitory
issuance of writ of preliminary
• Commands one to refrain from doing a particular
mandatory injunction
act
• Effect: Possession will be restored to the
2. Mandatory
plaintiff during the pendency of the
• Commands performance of some positive act to
main action.
correct a wrong done in the past.
PRELIMINARY INJUNCTION AS AN EQUITABLE
PROHIBITORY versus MANDATORY
REMEDY
• An application for a preliminary injunction is an
PRELIMINARY PRELIMINARY
equitable remedy, and one who claims for equity
PROHIBITORY MANDATORY
must do so with clean hands.
INJUCTION INJUNCTION
• It is to be resorted to by a litigant to prevent or
It requires one to It requires the
preserve a right or interest where there is a
refrain from a particular performance of a
pressing necessity to avoid injurious
act or acts. particular act or acts.
consequences which cannot be remedied under
The act has not yet The act has already
any standard of compensation.
been performed been performed and
because it is restrained has violated the rights
PURPOSE OF PRELIMINARY INJUNCTION
or prevented by the of another.
1. To prevent threatened or continuous irreparable
injunction.
injury to parties before their claims can be
Purpose is to prevent a Purpose is to restore
thoroughly studied and adjudicated during the
future or threatened the status quo and then
pendency of an action.
injury. The status quo is preserve the said status
2. To preserve the status quo until the merits of the
preserved. quo which has been
case can be heard.
restored
Status quo
• 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.

Reference: Civil Procedure Volume II by Dean Riano

 2|P age NOTES IN CIVIL PROCEDURE II Bem Jamison

PRELIMINARY INJUCTION versus MAIN ACTION FOR

INJUNCTION JUDGMENT IN ACTION FOR INJUNCTION
• Immediately executory, i.e. it is enforceable
PRELIMINARY MAIN ACTION FOR after its rendition and shall not be stayed by an
INJUCTION INJUNCTION appeal taken therefrom, unless otherwise
Not a principal action A principal action ordered by the trial court.
and can only exist as an • In case of stay of execution: Upon such terms as
incident to a principal to bonds or otherwise, as may be considered
1 action. proper for the security or protection of the rights
Not a cause of action A cause of action in of the adverse party.
but merely an adjunct itself
to the main suit PRELIMINARY PROHIBITORY INJUCTION versus
Does not seek a Seeks a judgment PETITION FOR PROHIBITION
permanent injunction. embodying a final
injunction. PRELIMINARY PETITION FOR
It is designed to require It perpetually restrains PROHIBITORY PROHIBITION
a party or a court, a person from the INJUCTION
2 Is not an independent Is an independent
agency or a person to commission or
refrain from a particular continuance of an act. action action
act or acts during the Is one that is generally Not directed against a
pendency of the directed against a party party-litigant but
principal case. litigant, a court, an against a tribunal,
Is an order granted at Granted after the trial agency or person. corporation, board,
any stage of an action or of the action if it officer or person
proceeding prior to the appears that the exercising judicial,
3 judgment or final order. applicant is entitled to quasi-judicial or
have the acts ministerial functions.
complained of Applies even if there is Applies when the acts
permanently enjoined. no issue of jurisdiction, or proceedings of any
The hearing is separate -- grave abuse of tribunal, corporation,
and distinct from the discretion, or other board, officer or person
4 similar acts which are without or in excess
trial on the merits of the
main case injunction. amount to lack of of its or his jurisdiction.
Generally based on The right and the act jurisdiction.
initial and incomplete violative thereof must
evidence. The evidence be established with PRELIMINARY MANDATORY INJUCTION versus
is not conclusive or abso-lute certainty to PETITION FOR MANDAMUS
complete for only be a basis for a final and
5 sampling is needed to permanent injunction. PRELIMINARY PETITION FOR
give the trial court an MANDATORY MANDAMUS
idea of the justification INJUCTION
for the preliminary Is a provisional remedy, Is a special civil action
injunction pending not a main or and a main action
decision. independent action
Not a final resolution or Judgment for a Is generally directed Is directed against a
decision disposing of permanent injunction against a party litigant, tribunal, board, officer
the case. Interlocutory suit should be assailed although under the or person
6 in nature and hence, the by a timely appeal. rules, it may also be
order of the court may issued against a court,
be challenged by a agency or person
petition for certiorari. Is issued to require a Is one which seeks a
party to perform an act judgment commanding
EXAMPLES OF ACTS SUBJECT TO THE MAIN ACTION in order to restore the a tribunal, corporation,
FOR INJUNCTION last peaceable and board, officer or person
1. Prying into the privacy of another’s residence uncontested status to perform a duty which
2. Meddling with or disturbing the private life or preceding the the law specifically
family relations of another controversy. enjoins as a duty either
3. Intriguing to cause another to be alienated from because there was an
his friends unlawful neglect of
4. Vexing or humiliating another on account of his such duty or a person
religious beliefs, lowly station in life, place of was unlawfully
birth, physical defect or other personal excluded from the use
condition. and enjoyment of an
office which such
person is entitled.

Reference: Civil Procedure Volume II by Dean Riano

 3|P age NOTES IN CIVIL PROCEDURE II Bem Jamison

May be directed against Direct against • It cannot be issued without a prior notice and
any act. ministerial acts. hearing. It cannot be issued ex parte.
COURT THAT ISSUES WRIT OF PRELIMINARY As to the application for a temporary restraining
INJUNCTION order: It shall be acted upon only after all parties are
• To be issued by the court where the principal heard in a summary hearing which shall be
action is pending. conducted within 24 hours after the sheriff’s return
of service and/or the records are received by the
GROUNDS FOR THE ISSUANCE OF WRIT OF branch selected by raffle and to which the records
PRELIMINARY INJUNCTION shall be transmitted immediately.
Section 3 Rule 58 of the Rules of Court provides that
a preliminary injunction may be granted when the Note: Same requirements for the issuance of the
following have been established: preliminary injunction and a temporary restraining
a. That the applicant is entitled to the relief order except that the latter may be issued ex parte.
demanded, and the whole or part of such relief
consists in restraining the commission or POSTING OF A BOND
continuance of the act or acts complained of, or • Purpose: To protect the defendant against loss or
in requiring the performance of an act or acts, damage by reason of the injunction in case the
either for a limited period or perpetually; court finally decides that the plaintiff was not
b. That the commission, continuance or non- entitled to it.
performance of the act or acts complained of
during the litigation would probably work RULE ON PRIOR OR CONTEMPORARY SERVICE OF
injustice to the applicant; or SUMMONS; WHEN NOT REQUIRED
c. That a party, court, agency or a person is doing,
threatening, or is attempting to do, or is General Rule: Notice must be preceded or
procuring or suffering to be done, some act or contemporaneously accompanied by service of
acts probably in violation of the rights of the summons upon the adverse party. Together with the
applicant respecting the subject of the action or summons shall be a copy of the complaint and the
proceeding, and tending to render the judgment applicant’s affidavit and bond.
ineffectual.
Exception: Not required where:
REQUISITES FOR ISSUANCE OF PRELIMINARY a. Summons could not be served upon the
INJUNCTION defendant either in person or by substituted
1. There exists a clear and unmistakable right to be service despite diligent efforts; or
protected; b. When the defendant is temporarily out of
“Clear and unmistakable right” – a present and the Philippines or when he is a non-resident.
legal right, which must be shown to be clear and
positive. NOTICE AND HEARING
2. This right is directly threatened by an act sought • No preliminary injunction shall be granted
to be enjoined; without hearing and prior notice to the party or
3. The invasion of the right is material and persons sought to be enjoined.
substantial; and • It cannot be issued ex parte.
4. There is an urgent and paramount necessity for
the writ to prevent serious and irreparable TEMPORARY RESTRAINING ORDER
damage. • Issued to preserve the status quo until the
hearing of the application for a writ of
FORMAL REQUISITES FOR ISSUANCE OF WRIT OF preliminary injunction because the injunction
PRELIMINARY INJUNCTION OR A TEMPORARY cannot be issued ex parte.
RESTRAINING ORDER • When may TRO be issued ex parte: If it shall
a. There must be a verified application; appear from the facts shown by affidavits or by
• Absence of a verification makes an application the verified application that great or irreparable
patently insufficient both in form and in injury would result to the applicant before the
substance; matter can be heard on notice.
b. The applicant must post a bond, unless • Validity of TRO: For a period of 20 days from
exempted by the court. service on the party or person sought to be
• The bond, which shall be in an amount to be fixed enjoined.
by the court, is executed in favour of the party • Duty of court within the 20-day period: The
enjoined to the effect that the applicant shall pay court must order said party or person to show a
to the party enjoined all damages which he may cause why the injunction should not be granted.
sustain by reason of the preliminary injunction or The court shall also determine whether or not
the restraining order if the court should finally the preliminary injunction shall be granted and
decide that the applicant was not entitled to the then issue the corresponding order.
writ or order. • In case of extreme urgency: The judge may issue
c. As to the writ of preliminary injunction: The court ex parte a TRO effective only for 72 hours from
must conduct a hearing. issuance but shall immediately comply with the
rule on prior or contemporaneous service of

Reference: Civil Procedure Volume II by Dean Riano

 4|P age NOTES IN CIVIL PROCEDURE II Bem Jamison

summons and the documents to be served government projects including arrastre and
therewith, unless summons is not required stevedoring operations.
(please see page 3 - Rule on prior or 5. Against the Presidential Reform Council (PARC)
contemporary service of summons). or any of its duly authorized agencies in any case
• Duty of court within the 72-hour period: The connected with the application, implementation
judge shall conduct a summary hearing to or enforcement of the CARP.
determine whether or not the TRO can be 6. Against the Privatization Trust (now Privatization
extended to 20 days. The 72-hour period shall be and Management Office of the Department of
included in the 20-day period set by rules. Finance).
• If the application for preliminary injuction is 7. With the orders of another court of co-equal rank
denied: The TRO would be deemed automatically or decrees of a court with concurrent or
vacated. coordinate jurisdiction.
• If TRO is issued by the Court of Appeals: It shall 8. RTC against quasi-judicial bodies of equal rank
be effective for 60 days from service on the party such as the SSS and SEC.
or person sought to be enjoined. Shall 9. Against the execution of an award for workmen’s
automatically expire on the 60th day without compensation.
need for any judicial declaration. 10. Injunction to restrain the collection of taxes of
• If TRO is issued by the Supreme Court: TRO shall any national internal revenue tax, fee or charge.
be effective until further orders. • Exception: When special circumstances
so warrant as when the collection of
THE 20-DAY PERIOD taxes would cause irreparable injury.
• The TRO shall automatically expire on the 20th 11. Orders releasing imported articles impounded by
day by the sheer force of law. No judicial the Bureau of Customs
declaration to the effect is necessary. 12. Against consummated acts.
• The failure of the trial court to fix a period in the • Reason: Nothing more could be
TRO does not convert it to a preliminary enjoined or prohibited because the
injunction. Where there is an omission to fix a events sought to be prevented by
period, the 20-day period is deemed injunction or prohibition have already
incorporated in the order. happened.
• Extending or renewing the TRO is prohibited if 13. To transfer possession or control of a property to
the extension or renewal is based on the very another when the legal title is still in dispute
same ground upon which it was originally issued. between the parties and whose legal title has not
been clearly established.
PROHIBITION ON INJUNCTIONS 14. For the purpose of establishing new relations
• No court shall issue any TRO or preliminary between the parties.
injunction against a government contract or 15. Where there is lack of a clear and unmistakable
project. right on the part of the applicant as when the
• Rationale: Injunctions and restraining orders complainant’s right is doubtful or disputed.
tend to derail the expeditious and efficient 16. Injunction which in effect, would dispose of the
implementation and completion of government main case without trial.
infrastructure projects, increase costs, and delay 17. To restrain a criminal prosecution except in
the enjoyment of so the social and economic extreme cases.
benefits therefrom. 18. Against the extrajudicial foreclosure of mortgage
on the allegation that the loan has been paid or
OTHER CASES WHERE PRELIMINARY INJUNCTIONS is not delinquent.
WILL NOT BE ISSUED • Unless the application is verified and
1. Against lawful actions of government agencies supported by evidence of payment.
that enforce environmental laws or prevent 19. Against the BSP for examining any institution
violations thereof. subject to supervision or examination by the BSP.
2. In any case involving growing out of labor • Unless there is a convincing proof that
disputes except as otherwise provided in Article the action of BSP is plainly arbitrary and
218 and 264 of the Labor Code, except: made in bad faith and the petitioner
• If the injunction is sought by a third files a bond
person whose property is sought to be 20. During the pendency of the petition for judicial
levied upon, to satisfy the liability of relief from the ruling of the arbitral tribunal.
another person since the matter neither 21. Against any freeze order issued by the AMLC
involves nor grows out of a labor dispute • Except if issued by CA or SC
insofar as the third party is concerned. 22. Injunction issued in order to protect one’s
3. In cases involving concessions, licenses and other alleged right of possession over inalienable land
permits issued by public administrative officials
or bodies for the exploitation of natural
resources.
4. Against the execution or implementation of OMBUDSMAN LAW
government infrastructure projects and essential

Reference: Civil Procedure Volume II by Dean Riano

 5|P age NOTES IN CIVIL PROCEDURE II Bem Jamison

“No writ of injunction shall be issued by any court to • Filing a counter-bond does not necessarily
delay an investigation being conducted by the warrant the dissolution of the writ of preliminary
Ombudsman. “ injunction.
• INEFFECTIVE because it took away from the • A preliminary injunction, if granted, may be
courts their power to issue TRO or writ of dissolved if it appears after hearing that although
preliminary injunction to enjoin an investigation applicant is entitled to the injunction or
conducted by the Ombudsman. Congress restraining order, that:
encroached upon the Court’s constitutional rule- a. The issuance or continuance thereof would
making authority. cause irreparable injury or damage to the
defendant while the applicant can be fully
“No court shall hear any appeal or application for compensated for the damages that he may
remedy against the decision or findings of the suffer; and
Ombudsman, except the Supreme Court, on pure b. The defendant files a bond conditioned that
question of law.” he will pay all damages which the plaintiff
• UNCONSTITUTIONAL because Congress cannot may suffer by reason of the dissolution of
interfere with matters of procedure, hence, it the injunction.
cannot alter the scope of a Rule 45 appeal so as
to apply to interlocutory findings issued by the MODIFICATION OF THE INJUNCTION
Ombudsman. • If it appears that the extent of the preliminary
injunction or restraining order is too great.
GROUNDS FOR OBJECTION OR DISSOLUTION OF
INJUNCTION OR RESTRAINING ORDER DUTY OF COURT THAT ISSUED THE WRIT AGAINST A
• The application for injunction or restraining LOWER COURT OR QUASI JUDICIAL AGENCY
order may be denied upon showing of its - Shall decide the main case or petition within six
insufficiency. It is considered insufficient: (6) months from the issuance of the writ.
1. If it is not verified and supported by any of
the grounds for its issuance under Sec. 3 of GRANT OF FINAL INJUNCTION
Rule 58; - Effect: Permanently restraining a party or person
2. If it does not show facts entitling the enjoined from committing or continuing the acts
applicant to relief demanded; subject of the injunction.
3. If it is not supported by the required bond
under Sec. 4 Rule 58;
4. Upon affidavits of the party or person
enjoined, which may be opposed by the
applicant also by affidavit.
5. If it appears after hearing that although
applicant is entitled to the injunction or
restraining order, the issuance or
continuance thereof would cause
irreparable injury or damage to the party or
person enjoined while the applicant can be
fully compensated for such damages as he
may suffer.
6. Grave abuse of discretion
o To be a valid ground for the
nullification of the writ, there must be a
capricious and whimsical exercise of
judgment, equivalent to lack or excess
of jurisdiction.
o The power must be exercised in an
arbitrary manner by reason of passion
or personal hostility and it must be
patent and gross as to amount to an
evasion of a positive duty or a virtual
refusal to perform a duty enjoined by
law.

EFFECT OF FILING A COUNTERBOND

Reference: Civil Procedure Volume II by Dean Riano