Republic of the Philippines

National Capital Judicial Region

REGIONAL TRIAL COURT
Branch 283, Valenzuela City
-oOo-

Xxx
Petitioner,
Civil Case No. Xxx-z-99
- versus -

Yyy
Respondents.
x--------------------------------------------x

COMMENT AND OPPOSITION

[RE: Application for Temporary Restraining Order and/or
Preliminary Mandatory & Prohibitory Injunction]

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Respondent, Yyy et al, by counsel, unto this Honorable office, most
respectfully states: o.
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1. This is filed pursuant to the court order to submit a written comment within
twenty-four hours (24) from the summary hearing conducted on 18 July
2017 regarding the application for a TRO.
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2. To be entitled to the relief sought for, plaintiffs must have a valid ground to
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file the remedy as provided by law. The grounds for a TRO/Preliminary

Injunction based on Sec. 3, Rule 58 of the Rules of Court are as follows:
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(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
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complained of, or in requiring the performance of an act

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or acts either for a limited period or perpetually;

(b) That the commission, continuance or non-
performance of the act or acts complained of during the
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litigation would probably work injustice to the applicant;

or
(c) That a party, court, agency or a person is doing,
threatening, or is attempting to do, or is procuring or
suffering to be done some act or acts probably in
violation of the rights of the applicant respecting the
subject of the action or proceeding, and tending to render
the judgment ineffectual.

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 3. Plaintiff, upon filing this provisional remedy, anchors its entitlement and
lists its arguments on the principal case for Petition for Annulment of
Judgment filed on 12 July 2017.

4. This Petition for Annulment of Judgment is to set aside the decision in Civil
Case 105031 (Civil Case for Ejectment).

5. With all due respect, Respondents do not find any cogent reason for this
Honorable Court to issue a Temporary Restraining Order and/or Preliminary
Mandatory & Prohibitory Injunction. Hence, they respectfully pray that this
Honorable Court deny the application of the same and eventually dismiss the
instant Petition.

6. In support thereof, Respondents makes the following submissions:

ARGUMENTS

The application for a Temporary Restraining Order and/or Preliminary

Mandatory & Prohibitory Injunction is groundless because the Principal Case of

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Annulment (Principal Case) was filed as a complete farce of a duly promulgated
decision long overdue.
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o. DISCUSSION
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I. There was deliberate misrepresentation

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on the part of plaintiff to effect a valid

Principal Case of Annulment of Judgment
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from which the Provisional Remedy of

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Temporary Restraining Order may be

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filed to merely delay the writ of execution.

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7. In the list and actual annexes of the Principal Case, patently missing are the
demand letters issued by herein Respondents to vacate the premises at issue
in Civil Case 99999. This was a misrepresentation on the part of the
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plaintiffs to make it appear that the MTC, Branch 82 of Valenzuela City,

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which issued the decision in the Civil Case had no jurisdiction over the
unlawful detainer case and thus entitle the petitioners to file the Principal
Case. Certified True Copies of the Demand Letters which were marked as
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Exhibits during the trial at the MTC, Branch 82 are hereunto attached and
made integral parts hereof.

8. Plaintiffs obviously were forced to create a case for Annulment of Judgment

under Rule 47 of the Rules of Court out of thin air because the decision in
the Civil Case has already been rendered on 4 May 2016 in favor of herein
respondents, has already attained finality and a writ of execution already
issued on 8 July 2016.

1 Xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx et Al,
Civil Case No. 99999 for Ejectment

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 9. Plaintiffs failed to include as parties in the Annulment for Judgment case the
parties required to refrain from a particular act or acts 2. In this case, they
failed to include the MTC Branch 82 which issued the decision and the
Sheriff whom the writ of execution was addressed.

II. There is no ground for Annulment of

Judgment due to Lack of Jurisdiction
over the subject matter on the part of
MTC Branch 82 of Valenzuela City

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10.Plaintiff's ground for Annulment of Judgment of the Civil Case due to lack
of jurisdiction over the subject matter is based on the theory that a case for
Ejectment due to Forcible Entry was the proper case because the basis for
the ejectment should have been the form of entry of the occupants which
they admittedly was by force and stealth and not the act of tolerance on the
prior owners of the property.

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11.Thus, plaintiff claim that the remedy was no longer possible because the

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period within which to file it has already lapsed.
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12.We do not agree with the plaintiff's theory and stand by our theory that there
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was a lawful case of Ejectment based on Unlawful Detainer and that it was
punctually filed as decided by MTC Branch 82.
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13.The Civil Case was one for unlawful detainer because contrary to the
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concept of the word 'Tolerance' introduced by herein plaintiffs as was stated:

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"A close assessment if the law and the concept of the

world 'tolerance' confirms our view heretofore expressed that
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such tolerance must be present right from the start of

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possession sought to be recovered, to categorize a cause of

action as one of unlawful detainer - not of forcible entry.
Indeed, to hold otherwise would espouse a dangerous
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doctrine."
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" It is the nature of defendant's entry into the land

which determines the cause of action, whether it is forcible
entry or unlawful detainer. If the entry is illegal, then the
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action which may be filed against the intruder is forcible

entry. If, however, the entry is legal but the possession
therafter becomes illegal, the case is unlawful detainer.
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- it is inadequate.

14. 'Tolerance' of the owner to the possessor retroacts, includes and cures the
illegal entry through force, threat or intimidation by the occupants. It is the
situation wherein the owner tolerates the possession of the occupants but

2 Sec. 1, Rule 58 of the Rules of Court

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 reserves his right to question the entry of the premises that creates an absurd
and contradicting definition and effect of 'Tolerance'. Hence 'Tolerance' to
the possession of the property is necessarily 'Tolerance' to the mode of entry
to the property in the case at bar.

15. As admitted by herein Plaintiffs in the Civil Case for Ejectment, their
occupation became legal by mere tolerance. Since such was present, there
was obviously a case for Ejectment Due to Unlawful Detainer which was
filed on time.

16. Thus, the MTC had jurisdiction over the subject matter.

III. There is no valid ground for

Annulment of Judgment due to Extrinsic
Fraud.

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17. Plaintiffs claim that there was extrinsic fraud on the part of their counsel.
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18.As such, based on their affidavit of merit, the basis for the extrinsic fraud is
inadequate as they are mere bare allegations and they failed to substantiate
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the fraudulent act of their counsel. As stated by law, allegations of fraud

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must be substantiated by sufficient evidence and mere allegation is definitely

not evidence3.
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IV. Plaintiffs failed to exhaust other

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available remedies before filing an

Annulment for Judgment under Rule 47
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19. Plaintiffs did not avail of other remedies such as but not limited to Notice of
Appeal, Petition for Relief from Judgment for no acceptable reason. In their
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affidavit of merit, the mere mention that they failed to avail of these
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remedies because it took them time to look for counsel, appears to be

untenable. In a long line of cases, Annulment of Judgment due to Extrinsic
Fraud must only be used in exceptional cases and is not allowed to be so
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easily and readily abused by parties aggrieved by the final judgments, orders
or resolutions4. Clearly, this is not one of those cases. Let it be stressed at the
outset that before a party can avail of the reliefs provided for by Rule 47,
i.e., annulment of judgments, final orders, and resolutions, it is a condition
sine qua non that one must have failed to move for new trial in, or appeal
from, or file a petition for relief against said issuances or take other
appropriate remedies thereon, through no fault attributable to him. If he
failed to avail of those cited remedies without sufficient justification, he
3 SpS Nilo Ramos et al v Raul Obispo et al, G. R. 193804, 27 February 2013

4 Dare Adventure Farm Corporation v. Court of Appeals, G.R. No. 161122,

September 24, 2012

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 cannot resort to the action for annulment provided in Rule 47, for otherwise
he would benefit from his own inaction or negligence.5

20. Hence, due to these numerous legal grounds, Respondents respectfully pray
that this Honorable Court deny Petitioners’ application for a Temporary
Restraining Order and/or Preliminary Mandatory & Prohibitory Injunction.

PRAYER

WHEREFORE, premises considered, Respondents respectfully pray that

this Honorable Court DENY the application for a Temporary Restraining Order
and/or Preliminary Mandatory & Prohibitory Injunction and eventually issue an
Order DISMISSING the instant Petition for Annulment of Judgment for utter lack
of merit.

All other reliefs as are just and deemed equitable are also prayed for.

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Quezon City for Valenzuela City, 19 July 2017.
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Counsel for Respondents

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COPY FURNISHED:
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EXPLANATION
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Please take notice that the foregoing COMMENT AND OPPOSITION

RE: Application for Temporary Restraining Order and/or Preliminary Mandatory &
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Prohibitory Injunction was served via private courier to insure immediate receipt
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hereof by the other party.

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Counsel

5 Republic v. Sandiganbayan, G.R. No. 140615, Feb. 19, 2001

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