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[ GR No. L-7663, Jan 31, 1956 ]



98 Phil. 343

[ G. R. No. L-7663, January 31, 1956 ]




Petitioner prays for the issuance  of a writ  of mandamus to compel the Justice of the  £eace of Calatagan, Batangas to reinstate Civil  Case  No. 40  of that court, entitled Enrique Zobel,  plaintiff,, vs.  Guillermo Mercado,  defendant, which said respondent court had dismissed on the ground that it  had no jurisdiction to try the case.

In said Civil Case No.  40, Zobel  sought to eject Mercado from a fishpond which the latter had leased from the former on April 15, 1950 at a yearly rental of P239.03.  In the complaint filed  by petitioner, the following allegations . were made:
"5. That prior to and within one year from date hereof, plaintiff has been unlawfully deprived of the possession of the property in question, and despite the former's repeated demands on  the latter to vacate the same, defendant has failed to do so, the last demand having been made on October 9, 1953;

"6; That the defendant has repeatedly failed to pay his annual rent and continued to occupy the property in question notwithstanding the repeated. demands  of the plaintiff to return the leased premises ¦ and for the payment of the annual rents from April 1, 1951 up to the present time, at the rate of P239.03 per year."
It is also alleged in paragraph 2 of  said complaint that the lease  was for a term of one year from  April 1, 1950 to March 31,  1951,  *   *  *   and renewable thereafter on a year to year basis."  Respondent Mercado promptly filed a  motion to dismiss on the  ground that the justice of the peace court lacks jurisdiction over the subject-matter, for the reason that when the action was filed more than one year had elapsed from the unlawful  deprivation or withholding of the possession; this is so, according to the motion, because from April 1,  1950 to February 5, 1954, the date of the filing of  the complaint, more than one year had expired.  In answer to said motion, petitioner stated that from the allegations of the complaint there was a tacit renewal  of  the lease from year to year and  an implied acquiescence on the part of the  lesser to let the defendant enjoy the possession of the fishpond.   The Justice of the Peace  court held that the cause  of action  accrued from April 1, 1952,  because the plaintiff would  naturally have made a  formal demand to return  the property  on that date, for failure of the defendant to pay the  rents from April 1, 1951 to March 31, 1952.  The respondent judge, therefore, decided that  his court lacks jurisdiction to try the case and dismissed the action.

In the consideration  of the  motion to  dismiss, which has supplanted the former demurrer under the Code of Civil Procedure, the facts alleged  in the complaint must be taken  into account, without modification  and without unreasonable inferences therefrom, and it is improper to inject in the allegations thereof facts' not alleged or proved, and use these as  basis for  said motion.  The claim that the rights of respondent Mercado to retain  possession of the property expired on April 1, 1952 is not justified by the allegations of the complaint as there is no statement to that effect, nor evidence submitted on which to base  such conclusion.  The claim is, furthermore, contrary to  the express allegation that the petitioner was deprived of the possession of the land in question "prior to and within one year from the date hereof" (of the complaint).  This is so -  because mere failure to pay  rents,  or a breach of contract to pay rents, does not render the  possession of the lessee per se unlawful,  nor may the  action for his  ejectment from  the land accrue upon such failure, or breach.   In accordance with Section 2, Rules 72 of the Eules  of Court, the right  to  bring the action of  ejectment or  unlawful detainer must be counted from the time the defendant has failed to pay the  rent after demand therefor.   It is  not the failure to pay  rents as agreed  upon in a contract, but the failure to pay the rents after a  demand therefor is made that entitles  the lessor to bring an action of unlawful detainer.

Furthermore,  even if the lessee had failed to pay  the rent after a demand  had  been made upon him  therefor, the lessor still had the privilege to waive his right to bring the action, or to allow the  lessor to continue in possession, thereby legalizing  such possession.  This is the substance of our ruling in the case of  Lucido & Lucido vs. Vita, 25 Phil. 414, wherein we held:
" * * *. Upon the other hand, however the landlord might conclude to give the tenant credit for the  payment of the rents and allow him to continue indefinitely in the  possession of the property. In other -words, the landlord might choose to give the tenant credit from month to month or from  year to year Iot the payment of the rent, relying upon his, honesty or  his financial ability  to pay the same.  During such period the tenant would not be in illegal possession  of the property and the landlord could not maintain an action of desahucio until after he had taken steps tq convert the legal possession into an illegal possession.  A mere failure to pay the rent in accordance with the contract would justify the  landlord, after the legal notice, in bringing an action of desahucio.  The landlord might,  however, elect to recognize the contract as still in force and sue for the  sums  due under it. It would seem to be clear that the landlord might sue for the  rents  due and unpaid, without  electing to terminate the contract of tenancy."
A third  reason against the  order of  dismissal  is the directive contained in the Rules (Rule 8, Sec 3,. Rules of Court) to the effect that the judge "may defer the hearing and determination  of  the  motion  until  the  trial  if the ground alleged  therein does not appear to be  indubitable." Under the circumstances of the case, the respondent court should not have  dismissed the complaint but should  have waited until  the trial,  or asked  the  parties  to submit evidence on the motion to dismiss.

The order of the court dismissing the action  for lack of jurisdiction on the basis of the allegations of the  complaint alone and the inferences  it had made  from  said allegations  is not justified by law.  While the action  of mandamus  may not be the proper remedy, in the interest of justice,  we consider the petition as one of certiorari and declare that the order of dismissal was issued with grave abuse  of discretion by the respondent judge.   Let a  writ issue from this  court declaring  the  order of  the judge dismissing  Civil Case No. 40 null and  void and  ordering that the  case dismissed be reinstated with  instructions that the respondent judge proceed to hear it in accordance with the rules.   Costs shall be  taxed  against respondent Guillermo  Mercado.

Parás, C. J., Padilla,  Montemayor, Reyes,  A.,  Bautista Angelo, Concepcion, Reyes,  J. B. L., and Endencia, JJ.,concur.