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Amendment to conform to or authorize presentation of evidence


Section 5. Amendment to conform to or authorize presentation of evidence. — When issues not raised by the pleadings are tried with the express or implied consent of the parties they shall be treated in all respects as if they had been raised in the pleadings. Such amendment of the pleadings as may be necessary to cause them to conform to the evidence and to raise these issues may be made upon motion of any party at any time, even after judgment; but failure to amend does not effect the result of the trial of these issues. If evidence is objected to at the trial on the ground that it is not within the issues made by the pleadings, the court may allow the pleadings to be amended and shall do so with liberality if the presentation of the merits of the action and the ends of substantial justice will be subserved thereby. The court may grant a continuance to enable the amendment to be made. (Rule 10, Rules of Court)

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May amendment be allowed to conform to or authorize presentation of evidence?

Section 1, Rule 9 of the Rules of Court states that “defenses and objections not pleaded either in a motion to dismiss or in the answer are deemed waived.” However, Section 5, Rule 10 of the Rules of Court allows the amendment to conform to or authorize presentation of evidence.


What are the two intances when pleadings may be amended to conform to the evidence?

Section 5, Rule 10 envisions two scenarios, namely:
  1. when evidence is introduced in an issue not alleged in the pleadings and no objection was interjected; and
  2. when evidence is offered on an issue not alleged in the pleadings but this time an objection was raised.
When the issue is tried without the objection of the parties, it should be treated in all respects as if it had been raised in the pleadings. On the other hand, when there is an objection, the evidence may be admitted where its admission will not prejudice him. (Sps, Dela Cruz vs. Concepcion, G.R. No. 172825, October 11, 2012)


●  In the event that a party presents evidence on a matter not in issue, the adverse party has a reason to object. Common reason dictates that a party cannot breach the basic procedural rule that the trial can deal only with matters raised by the parties in their pleadings. Neither can a court render judgment on a matter not in issue because a judgment must conform to the pleadings and the theory of the action under which the case was tried. But when issues not raised in the pleadings are tried with the express or implied consent of the parties, such as when no objection is made by either, such issues not raised shall be treated as if they had been put in issue by the pleadings.


● Applying Section 5, Rule 10 of the 1997 Rules of Civil Procedure, since the issue of support was tried with the implied consent of the parties, it should be treated in all respects as if it had been raised in the pleadings. And since there was implied consent, even if no motion had been filed and no amendment had been ordered, the Court holds that the trial court validly rendered a judgment on the issue. (Sy vs. Court of Appeals, G.R. No. 124518, December 27, 2007)


Bar questions:

In a complaint for a sum of money filed before the MM Regional Trial Court, plaintiff did not mention or even just hint at any demand for payment made on defendant before commencing suit. During the trial, plaintiff duly offered Exh. "A" in evidence for the stated purpose of proving the making of extrajudicial demand on defendant to pay P500,000, the subject of the suit. Exh. "A" was a letter of demand for defendant to pay said sum of money within 10 days from receipt, addressed to and served on defendant some two months before suit was begun. Without objection from defendant, the court admitted Exh. "A" in evidence. Was the court's admission of Exh. "A" in evidence erroneous or not? Reason.  (Bar 2004)

Suggested answer:

The admission of Exh. "A" was not erroneous. Since it was admitted without objection from the defendant, it is as if the matter of demand was raised in the pleadings (Sec. 5, Rule 10, Rules of Court).

In a situation where issues not raised in the pleadings are tried with the express or implied consent of the parties, Sec. 5 of Rule 10 authorizes the amendment of the pleadings to conform to the evidence upon motion of a party at any time, even after judgment. If the parties fail to amend the pleadings, such failure will not affect the trial of these issues because such issues are treated as having been raised in the pleadings of the parties (Sec. 5, Rule 10, Rules of Court). This provision under the Rules virtually authorizes an implied amendment of the pleadings.


A complaint was filed by the counsel for Superior Sales (an entity without a juridical personality) against Mr. Garcia on a money claim for goods delivered. Mr. Garcia did not file a motion to dismiss. Eventually, trial was held and his liability was established through several invoices, each of which uniformly showed on its face that Mr. Tan is the Proprietor of Superior Sales. After Superior Sales had rested its case, Mr. Garcia filed a motion to dismiss on the ground that since there is actually no person properly suing as plaintiff, no relief can be granted by the court. On the other hand, the counsel for Superior Sales filed a motion to amend the complaint to make it conform to the evidence, that the real party plaintiff is Mr. Tan. The court denied said motion on the ground that it was filed too late and instead, dismissed the case.  Did the court act correctly? (Bar 1992)

Suggested answer:

The court did not act correctly. Although there was a defect in the designation of the plaintiff because it had no juridical personality to sue, this defect was cured when the defendant did not object to the evidence that it was Mr. Tan who was the proprietor of the business and in whose favor the defendant is liable. This matter of Mr. Tan being the aggrieved party and thus, the real party-ininterest as plaintiff, was tried with the consent of the defendant. An amendment to conform to the evidence is but proper under the circumstances. The contention of the court that the motion was filed too late is with no legal basis. Under Sec. 5 of Rule 10, the motion to amend may be presented at any time, "even after judgment."

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