REPUBLIC OF THE PHILIPPINES

NATIONAL CAPITAL JUDICIAL REGION

METROPOLITAN TRIAL COURT
BRANCH ____ PARANAQUE CITY

xxx,
Plaintiffs,

-versus- Civil Case No: _______________

For: Unlawful detainer
with prayer for issuance
of writ of preliminary
mandatory injunction

xxx,
Defendants.
x-------------------------------------------------x

COMPLAINT
(With Prayer for the Issuance of a Writ of Preliminary Mandatory
Injunction)

COMES NOW Plaintiffs, spouses x and x, through undersigned

counsel and unto this Honorable Court, most respectfully states that;

1. Plaintiffs xxxx are spouses, of legal age, Filipinos and currently

residing at xxx. At the time of the filing of this complaint, plaintiff
xxx is working overseas and is duly represented by his wife,
plaintiff xxx. A copy of the Special Power of Attorney executed by
plaintiff xxx in favor of plaintiff xxx is attached and marked as
Annex “A” hereof;
2. Defendant xxx is single, of legal age, Filipino, and currently an
occupant at xxx where he may be served with summons and other
processes of this Honorable Court;

3. The plaintiffs are the registered and absolute owners of a house

and lot located at xxx covered by Transfer Certificate of Title No.
xxx. Moreover, as an act of ownership, plaintiffs have been
faithfully paying the property’s annual real property taxes and
other related fees to the local government. As such, the defendant
cannot raise the issue of ownership in the present case considering
that the plaintiffs are the registered owners of the property as
clearly indicated in TCT No. xxx nor can he assail its validity as the
same would be tantamount to a collateral attack which both law
and jurisprudence prohibit. Copies of TCT No. xxxx and tax
declarations of the subject property are attached and marked as
Annex “B” and Annex “C” hereof;

4. Sometime in 2009, xxxx, the mother of plaintiff xxx, requested

from the plaintiffs to allow the defendant, her son, to occupy the
rooftop of their three storey house. Considering that the defendant
provided assistance in the construction of their house, the
plaintiffs allowed the defendant to occupy the rooftop without the
need of paying any monthly rental. In other words, the possession
of the defendant of the premises was merely by tolerance of the
plaintiffs;

5. Despite being allowed to occupy the premises without paying any

monthly rentals, the defendant proved to be a very undesirable
tenant. There have been many instances where the defendant
caused disturbances and commotions much to the displeasure of
 the plaintiffs. In one instance in 2013, the defendant had a party
with many people invited who were too noisy and rowdy which
caused discomfort to plaintiff xxx who was pregnant at that time;

6. Also, there have been many instances when the defendant caused
the cutting of the main pipe of Maynilad in the plaintiffs’ house.
The first instance was when the plaintiffs caught xxx, the brother
in law of the defendant, cutting the main pipe as commanded by
the defendant. The only reason why xxx stopped was because of
the argument that ensued between him and the spouses. Also, in
another incident when a plumber was caught cutting the main
pipe again, the defendant shouted to plaintiff xxx, “Kahit anong
gawin ko wala kang pakialam, nagkaroon ka ng titulo dahil sa
akin! Lumayas ka kung hindi ka makatagal!”;

7. Moreover, the defendant also caused several construction works

that have been causing damage up until now to the property of the
plaintiffs. The defendant made many drillings and installed pipes
without the permission of the plaintiffs and as a result, water from
the toilet used by the defendant trickle down to the 2 nd and 1st
floors of the house of the plaintiffs. Copies of photographs showing
the damage caused as a result of the construction works
performed by the defendant are attached and marked as Annex
“D” to “D-1” and the photographs showing the construction works
done by the defendant are attached and marked as Annex “E” to
“E-1” hereof, respectively;

8. There was also an incident when the defendant threw water to

plaintiff xxx and threatened to hit her with a metal pipe if she
continued from meddling with the activities of the defendant. As a
 matter of fact, the defendant had the gall to post a “No
Trespassing” sign along the stairs leading to the rooftop. Truly, the
defendant being an undesirable tenant is an understatement;

9. Due to the damaging activities of the defendant and the fact that
his occupation is merely by tolerance of the plaintiffs, defendant
xxx, through undersigned counsel, sent a Notice to Vacate dated
xxxthrough LBC courier as personal service was not feasible at
that time due to the unstability and tendency for violence of the
defendant. Copies of the Notice to Vacate and the registry mail
receipt are attached and marked as Annexes “F” to “F-1”;

10. On 4 November 2016, plaintiff xxx filed a complaint for

ejectment and damage to property against the defendant in the
Barangay Hall of San Antonio, Paranaque City considering that he
has not left the property despite the notice to vacate sent to him.
During the barangay conciliation hearings scheduled last 15
November 2016, 29 November 2016 and 16 December 2016, the
defendant purposely failed to appear in any of the said hearings.
Copies of the complaint filed in the barangay dated 4 November
2016 and the minutes of the hearings in aforementioned dated are
attached and marked as Annex “G” and Annex “H” to “H-2”;

11. As a result of the defendant’s failure to appear during the

scheduled barangay conciliation hearings, a Certification to File
Action was issued by Barangay San Antonio on 16 December
2016. Necessarily, the requirement under Section 12 of Rule 70 of
the Rules of Court has been complied. A copy of the Certification to
File Action is attached and marked as Annex “I” hereof;
12. In addition, the neighbors of the plaintiffs namely xxxx.,
executed affidavits to corroborate the foregoing allegations and to
attest to their truthfulness. Copies of the affidavits are attached
and marked as Annex “J” xxx), Annex “K” (xxx), Annex “L” (x),
Annex “M” (xxx), Annex “N” (x), and Annex “O” (x.) hereof,
respectively;

13. Under Section 1 of Rule 70 of the Rules of Civil Procedure, it

is stated that:

“Section 1. Who may institute

proceedings, and when. — Subject to the
provisions of the next succeeding section, a
person deprived of the possession of any
land or building by force, intimidation,
threat, strategy, or stealth, or a lessor,
vendor, vendee, or other person against
whom the possession of any land or
building is unlawfully withheld after the
expiration or termination of the right to
hold possession, by virtue of any
contract, express or implied, or the legal
representatives or assigns of any such
lessor, vendor, vendee, or other person,
may, at any time within one (1) year after
such unlawful deprivation or withholding
of possession, bring an action in the
proper Municipal Trial Court against the
person or persons unlawfully withholding
or depriving of possession, or any person
or persons claiming under them, for the
restitution of such possession, together
with damages and costs. (1a)” (Emphasis
supplied)

As stated in the preceding paragraphs, from the very beginning,

the possession by the defendant of the premises was merely by
tolerance or leniency of the plaintiffs which resulted from the pleas
of the mother of plaintiff x. In other words, the defendant’s right to
 hold possession of the premises was by mere tolerance of the
plaintiffs that became subsequently unlawful upon expiration of
the period provided by law after the defendant was demanded to
vacate the premises. Moreover, the plaintiffs have one year from
October 2016 to file the present case for unlawful detainer as
provided by law;

14. Going further, Section 2 of Rule 70 provides;

“Section 2. Lessor to proceed against

lessee only after demand. — Unless
otherwise stipulated, such action by the
lesser shall be commenced only after
demand to pay or comply with the
conditions of the lease and to vacate is
made upon the lessee, or by serving written
notice of such demand upon the person
found on the premises if no person be found
thereon, and the lessee fails to comply
therewith after fifteen (15) days in the case
of land or five (5) days in the case of
buildings. (2a)”

Also, as previousy stated, the defendant was demanded to vacate

the premises within 5 days from receipt of the Notice (Annex “E” to
“E-1”) which the defendant failed to do. Upon expiration of the said
period, the defendant’s possession of the premises had already
become illegal. As a matter of fact, the defendant has been
occupying the premises up until now despite demand and the
termination of the barangay conciliation proceedings which
defendant purposely failed to attend. Moreover, the continued
possession by the defendant has been causing damage to the
property of the plaintiffs due to the construction works done by the
defendant;
15. In the case of Republic of the Philippines et al versus
Sunvar Realty Development Corporation [G.R. No. 194880
dated 20 June 2012], the Supreme Court discussed the requisites
of a valid complaint for unlawful detainer:

“Hence, a complaint sufficiently alleges a

cause of action for unlawful detainer if it
states the following elements:

1. Initially, the possession of the property by

the defendant was by contract with or by
tolerance of the plaintiff.
 
2. Eventually, the possession became illegal
upon the plaintiffs notice to the defendant of
the termination of the latters right of
possession.
 
3. Thereafter, the defendant remained in
possession of the property and deprived the
plaintiff of the latters enjoyment.
 
4. Within one year from the making of the
last demand on the defendant to vacate the
property, the plaintiff instituted the
Complaint for ejectment. ” [63]

Based from the foregoing discussion in relation to the above cited

ruling, it is as clear as day that the present complaint for unlawful
detainer provides a sufficient cause of action against the
defendant. Moreover, the additional requirement of undergoing
barangay conciliation proceedings and the subsequent issuance of
a Certification to File Action has also been complied with;

16. To elaborate on the initial nature of the defendant’s

possession of the premises, it bears stress repeating that the same
was initially lawful as it was merely torelated by the plaintiffs. In
the case of Rey Castigador Catedrilla versus Mario and Margie
Lauron [G.R No. 179011 dated 15 April 2013], the Supreme
Court discussed the implied promise that an occupant makes
when his possession of the premises is merely by tolerance. To wit:

“In ejectment cases, the only issue to be

resolved is who is entitled to the physical or
material possession of the property involved,
independent of any claim of ownership set
forth by any of the party-litigants. 31 In an
action for unlawful detainer, the real party-
in-interest as party-defendant is the person
who is in possession of the property without
the benefit of any contract of lease and only
upon the tolerance and generosity of its
owner.32 Well settled is the rule that a
person who occupies the land of another
at the latter’s tolerance or permission,
without any contract between them, is
bound by an implied promise that he will
vacate the same upon demand, failing
which a summary action for ejectment is
the proper remedy against him. 33 His
status is analogous to that of a lessee or
tenant whose term of lease has expired
but whose occupancy continued by
tolerance of the owner.34” (Emphasis
supplied)

Considering that the defendant was occupying the premises by

mere tolerance or leniency of the plaintiffs due to the request of x,
the mother of defendant and plaintiff x, the defendant is bound by
an implied promise to vacate the premises of the plaintiffs upon
demand. Due to her failure to vacate, the present complaint for
unlawful detainer against him is therefore proper;

ARGUMENTS/ALLEGATIONS IN SUPPORT OF THE PRAYER

FOR THE ISSUANCE OF A WRIT FOR PRELIMINARY
MANDATORY INJUNCTION AND CLAIMS FOR DAMAGES
17. Plaintiffs hereby replead all the foregoing allegations as are
consistent with their prayer for the grant of preliminary mandatory
injunction against the defendant and anyone claiming any right of
possession over the subject premises, and further avers;

18. Section 15, Rule 70 of the Rules of Court expressly provides

that:

“Section 15. Preliminary injunction. – The

court may grant preliminary injunction, in
accordance with the provisions of Rule 58
hereof, to prevent the defendant from
committing further acts of dispossession
against the plaintiff.

A possessor deprived of his possession

through forcible entry or unlawful detainer
may, within five (5) days from the filing of the
complaint, present a motion in the action for
forcible entry or unlawful detainer for the
issuance of a writ of preliminary mandatory
injunction to restore him in his possession.
The court shall decide the motion within
thirty (30) days from the filing thereof.”

19. Furthermore, Section 3 of Rule 58 enumerates the grounds

when the issuance of preliminary injunction may prosper, to wit:

“Section 3. Grounds for issuance of

preliminary injunction. – A preliminary
injunction may be granted when it is
established:

(a) That the applicant is entitled to the

relief demanded , and the whole or part
of such relief consists in restraining the
commission or continuance of the act or
acts complained of, or in requiring
performance of an act or acts, either for
a limited period or perpetually;
 -xxx-” (Emphasis
supplied)

20. In the case of Toyota Motor Philippines Corporation

versus The Court of Appeals et al., [G.R. No. 102881 dated 7
December 1992], the Supreme Court ruled that:

“In actions involving realty, preliminary

injunction will lie only after the plaintiff has
fully established his title or right thereto by a
proper action for the purpose. To authorize a
temporary injunction, the complainant must
make out at least a prima facie showing of a
right to the final relief. Preliminary injunction
will not issue to protect a right not in
esse (Buayan Cattle Co. Inc. v. Quintillan,
128 SCRA 286-287 [1984]; Ortigas &
Company, Limited Partnership v. Ruiz, 148
SCRA 326 [1987]).

Two requisites are necessary if a preliminary

injunction is to issue, namely, the existence
of the right to be protected, and the facts
against which the injunction is to be
directed, are violative of said right. In
particular, for a writ of preliminary
injunction to issue, the existence of the
right and the violation must appear in the
allegations of the complaint and an
injunction is proper also when the
plaintiff appears to be entitled to the relief
demanded in his complaint…” (Emphasis
supplied)

21. Plaintiffs, without any doubt, are entitled to the injunctive

relief it prays considering the circumstances of this case, which are
consistent with the foregoing rules and jurisprudence. Plaintiffs
are entitled to all the reliefs herein demanded, the whole or in part
of such relief being that of mandating the defendant and all
persons claiming rights over him, to immediately vacate the
premises;
22. It is sufficiently clear upon the facts and the circumstances
obtaining in the case at bar, that irreparable damage and injury
would result to the prejudice of the plaintiffs due to the continued
unlawful possession by the defendant of plaintiff’s property;

23. Plaintiffs are willing and ready to post a bond executed to the
defendant, in an amount that may be fixed by this Honorable
Court, to the effect that plaintiffs will pay the defendant all
damages which the latter may sustain by reason of the injunction,
if subsequently, this Honorable Court would finally decide that
plaintiff is not entitled thereto;

24. As previously stated, the defendant has caused several

construction works in the premises being occupied by him that
have caused continuous damage to the property of the plaintiffs. In
addition, there have been previous episodes wherein the defendant
verbally maligned plaintiff x. Thus, on account of the foregoing
actions committed by the defendant, the plaintiffs suffered
damages as follows:

a) Temperate Damages in the amount of Php 20,000 (TWENTY

THOUSAND PESOS) to compensate the plaintiffs for the damage
caused by the constructions works of the defendant:

b) Moral Damages in the amount of Php 50,000.00 (FIFTY

THOUSAND PESOS) for the mental anguish, sleepless nights
and serious anxiety experienced by the plaintiffs as a result of
the acts committed by the defendant and continued possession
of the premises despite demand to vacate:
 c) Attorney’s Fees and Expenses of Litigation in the amount of
Php 40,000.00 (FORTY THOUSAND PESOS) as a result of the
unlawful continued possession of the defendant which
compelled the plaintiffs to engage the services of counsel in
order to defend their rights and enforce their claim. A copy of
the retainer agreement executed by and between plaintiff x and
undersigned counsel is attached and marked as Annex “P”
hereof;

PRAYER
WHEREFORE, in view of the foregoing, it is respectfully prayed of
this Honorable Court that, after proper proceedings, judgment be
rendered in favor of the plaintiffs as follows;

1) ISSUING a writ of preliminary mandatory injunction in favor of

the plaintiffs, during the course of the trial, ordering the
defendant and anyone who claims title and possession over the
premises to immediately vacate the subject premises;

2) ORDERING the ejectment of the defendant and to vacate the

premises PERMANENTLY in order to restore the rightful
possession of the premises to the the plaintiffs:

3) ORDERING the defendant to pay the plaintiffs the reasonable

amount for the use and occupation of the premises, which
amount must be at least TEN THOUSAND PESOS (P10,000.00)
per month starting from the month of last demand in October
2016 until the defendant’s eventual ejectment from the
premises;
 4) ORDERING the defendant to pay plaintiffs the following:

a. Temperate Damages in the amount of Php 20,000.00

(TWENTY THOUSAND PESOS)
b. Moral Damages in the amount of Php 50,000.00 (FIFTY
THOUSAND PESOS)
c. Attorney’s Fees and Expenses of Litigation in the
amount of Php 30,000.00 (THIRTY THOUSAND PESOS)

Other reliefs, just and equitable, under the circumstances are

likewise prayed of this Honorable Court.

Paranaque City, ___ February 2017.

BY:
x