"On the propriety of the motion to dismiss
Section 6, Rule 16 of the Rules of Court provides:
SEC. 6. Pleading grounds as affirmative defenses. – If no motion to dismiss has been filed, any of the grounds for dismissal provided for in this Rule may be pleaded as an affirmative defense in the answer and, in the discretion of the court, a preliminary hearing may be had thereon as if a motion to dismiss had been filed.
The dismissal of the complaint under this section shall be without prejudice to the prosecution in the same or separate action of a counterclaim pleaded in the answer.
The rule is based on practicality. Both the parties and the court can conveniently save time and expenses necessarily involved in a case preparation and in a trial at large, when the issues involved in a particular case can otherwise be disposed of in a preliminary hearing.31
Since the rule provides that the "preliminary hearing may be had thereon as if a motion to dismiss had been filed," such hearing shall therefore be conducted in the manner provided in Section 2, Rule 16 of the Rules of Court,32 which reads:
SEC. 2. Hearing of motion. – At the hearing of the motion, the parties shall submit their arguments on the question of law and their evidence on the questions of fact involved except those not available at that time. Should the case go to trial, the evidence presented during the hearing shall automatically be part of the evidence of the party presenting the same.
It is, therefore, inconsequential that petitioner had already filed an answer to the complaint prior to its filing of a motion to dismiss. The option of whether to set the case for preliminary hearing after the filing of an answer which raises affirmative defenses, or to file a motion to dismiss raising any of the grounds set forth in Section 1, Rule 16 of the Rules are procedural options which are not mutually exclusive of each other.
Moreover, as petitioner correctly pointed out, respondents failed to oppose the motion to dismiss despite having been given the opportunity to do so by the RTC. Therefore, any right to contest the same was already waived by them."
THIRD DIVISION
G.R. No. 166383, October 16, 2009
ASSOCIATED BANK, Petitioner,
vs. SPOUSES JUSTINIANO S. MONTANO, SR., AND LIGAYA MONTANO and TRES CRUCES AGRO-INDUSTRIAL CORPORATION, Respondents.
https://lawphil.net/judjuris/juri2009/oct2009/gr_166383_2009.html