REPUBLIC OF THE PHILIPPINES

Regional Trial Court

___ Judicial Region
BRANCH __
Digos City, Davao del Sur

ROMINA MONDRAGON and Civ Case No.: _____

CASSIE MONDRAGON,
-for-
Plaintiffs,
Recovery of Possession
-versus– with Prayer for Writ of
Preliminary Injunction
DANIELA MONDRAGON-
BARTOLOME and MARGA
BARTOLOME,

Defendant.

x--------------------------- --
x

COMPLAINT
COMES NOW, the Plaintiff with the assistance of the undersigned
counsel, unto this Honorable Court most respectfully file this Complaint and
aver that:

1. Plaintiffs ROMINA MONDRAGON and CASSIE

MONDRAGON, who are of legal age, and a resident of Bukang
Liwayway, Brgy., Zone 3, Digos City, where they may be served with
summons, orders, notices and other court processes that the
Honorable Court may issue;

2. Defendants DANIELA MONDRAGON-BARTOLOME and

MARGA BARTOLOME are likewise of legal age, and a resident of
Purok Tabing-ilog, Zone 1, Digos City, where they may be served with
summons, orders, notices and other court processes that the
Honorable Court may issue;

3. Plaintiffs are the true and registered owner of a 2 Stories Commercial

Building named Ken Afford Arcade, Located at Zone 3, Digos City,
covered by Transfer Certificate of Title No. T-11010 consisting of an
 area of ONE HUNDRED EIGHTY (180) square meters; (hereto
attached and marked as ANNEX A);

4. That the present assessed value of the property is TEN MILLION

EIGHT HUNDRED THOUSAND PESOS (10, 800, 000) as can be
gleaned from the Tax Declaration No. 2519-000122 (hereto attached
and marked as ANNEX B);

5. That the Plaintiffs and the Defendants entered into a Contract of Lease
over the Subject Commercial Building on January 1, 2019, for a term
of One year (1) for One Hundred Thousand Pesos (100, 000.00) a
month from January 1, 2019 to January 1, 2020 (hereto attached and
marked as ANNEX C);

6. That fifteen (15) days before the expiration of the Contract, the
Plaintiffs notified the herein defendant the latter will not renew the
Contract to open a way for the renovation of the building and that the
defendant is given fifteen days (15) to vacate the premises (hereto
attached and marked as ANNEX D);

7. That on January 7, 2020, the Defendant requested the Plaintiff to give

them until January 31, 2020, since the defendants were still looking for
a new strategic place, to which the Plaintiff agreed;

8. On January 31, 2020, the plaintiff issued another Notice to Vacate

giving the defendant another fifteen days to vacate the premises
(hereto attached and marked as ANNEX E);

(These evidences were corroborated by the Testimony of Jayson

Pardillo, employee of the plaintiffs, his Judicial Affidavit is hereto
attached as ANNEX F)

9. That on February 15, 2020, a nationwide lockdown was declared in the

Philippines, and that the plaintiffs were unable to travel to Digos City
from their hometown in Kidapawan City because of the Travel
Restrictions imposed in the borders of two (2) Cities and that the
defendant continued their occupation in the subject building from then
on;

10. That on October 15, 2020, after the travel restrictions were relaxed, the
plaintiff along with the Brgy. Captain of Zone 3, Mr. Donald Tramp,
demanded the defendant to vacate the building since they were already
given ample time to look for a new place to transfer. However, the
defendant refused and contended that the contract was already
renewed after fifteen (15) days from the expiration of the contract of
sale;
11. That the defendant has remained in illegal possession of the subject
building up to the present and still retain in such possession to the
prejudice of the rightful owner of the subject property;

12. Accordingly, an implied new lease is only created pursuant to Article

1670 of the Civil Code, which expressly provides:

“Article 1670. If at the end of the contract the lessee should continue
enjoying the thing leased for fifteen days with the acquiescence of the
lessor, and unless a notice to the contrary by either party has
previously been given, it is understood that there is an
implied new lease, not for the period of the original contract, but for
the time established in Articles 1682 and 1687. The other terms of the
original contract shall be revived.”

13. Moreover, in the case of Viegly Samelo, et al. vs. Manotok

Services, Inc., et al. (G.R. No. 170509, June 27, 2012;
ponente, former Associate Justice Arturo Brion), the Supreme
Court enunciated that “an implied new lease or tacita reconduccion will
set in when the following requisites are found to exist: a) the term of
the original contract of lease has expired; b) the lessor has not given
the lessee a notice to vacate; and c) the lessee continued enjoying the
thing leased for fifteen days with the acquiescence of the lessor.”

14.There is no implied new lease or tacita reconduccion, when the

plaintiffs informed the defendants to vacate the leased premises, the
tacita reconduccion was aborted, and the agreement with the
latter is deemed to have expired during the stipulated time;

15. Such notice to vacate is a clear indication of an express act on the part
of the plaintiff that the same no longer consent to the continued
occupation by the defendant in the subject property. After such notice,
the continued possession of the leased premises is an actionable
wrong;

16.Also, the continued occupation from February 15, 2020 until October
2020, was a mere tolerance of the part of the plaintiff and in
consideration of the pandemic, it was not an implied agreement on the
part of the plaintiff to renew the contract of lease;

17. Assuming arguendo that the possession by tolerance is lawful, such

possession becomes illegal upon demand to vacate is made by the
owner and the possessor by tolerance refuses to comply with such
demand (Prieto v. Reyes 14 SCRA 432; Yu v. De Lara, 6 SCRA
786,788; Isidro v. Court of Appeals, G.R. No. 105586,
December 15,1993);

PETITION FOR THE ISSUANCE OF

 WRIT OF PRELIMINARY INJUNCTION

Plaintiffs incorporated and replead the foregoing allegations and further

aver that:

18. The Plaintiffs’ clear and unmistakable rights are anchored on their
being the rightful possessors of the subject property and that the
plaintiffs are entitled to the relief demanded and the whole or part of
such relief consist in ordering the defendant to deliver to the them the
property subject to this case which is described in paragraph 3 of this
complaint;

19.That the continued possession or continuance of the unlawful acts

complained during the litigation would cause irreparable damage to the
plaintiffs who are wrongfully prevented in entering and taking
possession of the building considering that the same now requires
renovations;

20. That the plaintiffs who have the financial capacity have expressed their
willingness to pay the bond as soon as the Honorable Court has
determined the amount for the same. Those who are indigents on the
other hand shall produce a Certificate of Indigence.

PRAYER

WHEREFORE, premises considered, it is most respectfully prayed to

the Honorable Court:

21.That pending final judgement, a writ of preliminary mandatory

injunction be issued ordering the defendants to vacate and deliver to
the plaintiff the building described under paragraph 3 of this complaint;

22. Ordering the defendants to pay the monthly rentals amounting to Php
100, 000.00 from January 1, 2020 until the delivery of the property to
the plaintiff;

23. Ordering the defendants to permanently vacate and deliver the

possession of the building to the herein plaintiffs;

24. Ordering the defendants to pay moral and exemplary damages that
may be awarded by the honorable court, acceptance fees, attorneys fees
and other available monetary claims;
 All other reliefs just and equitable under the premises are all likewise
prayed for.

Digos City, Davao del Sur, 15 February 2020.

FAMADOR, PARDILLO, SUMUGAT & PAILANO
LAW OFFICES
Gaisano Mall, Digos City., Philippines
Telephone Number: 064-278-3815
Fax Number: 064-278-3815
Cellular Phone: 09205899694

by:

ATTY. PIOLO PACUTE

(Counsel for the Plaintiff)
Roll No. 121122
Notarial Commission No. 112-225, until 2021
TIN No. 293548217/Digos City; PTR No. 1252552245 01March2020
IBP No. 959348-10/18/16DIGOS CITY
MCLE Compliance No. V – 4455421, 1 JANUARY 2021
Date of Admission to the Bar: October 16, 2019

VERIFICATION AND CERTIFICATION

I, ROMINA MONDRAGON and CASSIE MONDRAGON of legal

age, Filipino and residents of Bukang Liwayway, Brgy., Zone 3, Digos City,
after having been sworn to in accordance with law depose and state that:

1. I am a plaintiff in the above-stated case;

2. I caused the preparation of the foregoing complaint;
3. I have read the contents thereof and the facts stated therein are true
and correct of my personal knowledge and/or on the basis of copies of
documents and records in my possession;
4. I have not commenced any other action or proceeding involving the
same issues in the Supreme Court, the Court of Appeals, or any other
tribunal or agency;
5. To the best of my knowledge and belief, no such action or proceeding
is pending in the Supreme Court, the Court of Appeals, or any other
tribunal or agency;
6. If I should thereafter learn that a similar action or proceeding has
been filed or is pending before the Supreme Court, the Court of
 Appeals, or any other tribunal or agency, I undertake to report that fact
within five (5) days therefrom to this Honorable Court.

IN WITNESS WHEREOF, I have hereunto affixed my hand, this 8th

day of February 2021 at Digos City, Davao del Sur.

ROMINA MONDRAGON
Passport No. 221-5575-55555

CASSIE MONDRAGON
Passport No. 221-12522555

SUBSCRIBED AND SWORN TO BEFORE ME, this 8th day of

February 2021 at Digos City, Davao del Sur, Philippines.

ATTY. PIOLO PACUTE

Notary Public
City of Digos, Province of Davao del Sur
Doc. No: 111; Commissioned Serial No. 73-2014
Page. No: 12; Until December 31, 2022
Book No: _001; PTR No. 2315906, 01-04-2021,Kidapawan City
Series of 2021 IBP No. 136914, 12-28-2020, Pasig City
Romina Mondragon and Cassie Mondragon

Digos CIty

10, 800.00
 ANNEX - C

CONTRACT OF LEASE OF COMMERCIAL

BUILDING

KNOW ALL MEN BY THESE PRESENTS:

This Contract of Lease executed and entered into by and between:

ROMINA MONDRAGON and CASSIE MONDRAGON, Filipinos, of

legal age, single, with residential address at Bukang Liwayway, Brgy., Zone 3, Digos
City, Philippines, hereinafter referred to as the ‘LESSOR’

And

DANIELA MONDRAGON-BARTOLOME and MARGA

BARTOLOME, Filipino, of legal age, married, with residence at Purok Tabing-ilog,
Zone 1, Digos City, hereinafter referred as the “LESSEE’

TERMS AND CONDITIONS

1. PREMISES- LESSOR hereby leases to LESSEE and LESSEE hereby leases from
LESSOR approximately one hundred eighty(180) square meters more or less of total land
area, 2 Stories Commercial Building named Ken Afford Arcade, situated Zone 3, Digos
City, which shall be referred to as the “Premises”.
 2. USE OF THE PREMISES- The Lease is for the purpose of operating a commercial or
retail business which the lessee is engaged in. The LESSEE, at his own expense may put
up improvements upon prior consultation and written approval of the LESSOR within the
premises hereby leased for the purpose of storage, retail, wholesale and commercial in
nature and not for any purpose whatsoever. It is being expressly agreed that if, at any time
during the existence of this lease and without the previous written consent of the LESSOR,
the said premises are used for the purposes other than what is stated, the LESSOR has
the option of either terminating the lease or collecting increased rental as deemed
appropriate from the date of diversion of use of the premises or to compel the LESSEE to
stop the unapproved activity.

3. TERM OF THE LEASE- The term of this Lease Contract is for a period of ONE (1)
year, renewable for an unspecified duration at terms mutually agreeable to both parties,
commencing on January 1, 2019 and ending at midnight of January 1, 2020, In case of
pre-termination by the lessee, for any reason whatsoever, the LESSOR has the right to
collect any remaining rentals corresponding to the unexpired portion of the LEASE period,
or until such time a new LESSEE comes.

This LEASE shall not be deemed extended or renewed beyond the period time above-mentioned
for any cause or reason whatsoever and unless the parties agree in writing to extend or renew or
enter into a new Contract to Lease upon such terms and conditions acceptable to them, the
possession of the Premises by the LESSEE or any persons claiming rights through the LESSEE,
after the expiration of the term thereof, shall be illegal.

Any renewal or extension of this Contract must be expressly agreed upon by the LESSOR
and LESSEE in writing and under no circumstances can such renewal or extension be considered
as having made impliedly.

For this purpose, the LESSEE shall notify the LESSOR to the latter’s office in writing, of
this intent to renew or extend the Contract at least sixty (60) calendar days prior to the expiration
of the Leased period, or any extension or renewal thereof, provided, however, that the notice as
aforesaid does not in any way vest unto the LESSEE the right to demand for such extension or
renewal of the Lease Period or any renewal or extension thereof.
4. RENT- The monthly rental shall be scheduled as follows, inclusive of the twelve percent
(12%) Expanded Value Added Tax (EVAT) adjustable corresponding to the subsequent
and substantial tax policy changes by the local or national government, with an
escalation of five (5) percent after two (2) years as illustrated below. All payments must
be made only through cash/check. Without necessity of demand, the LESSEE shall pay
the monthly rental within the first five (5) days of each calendar month, at the office of
the LESSOR.

SCHEDULE OF RENTAL RATES

_____________________ Php.100,000.00 / January 1, 2019

_____________________ Php. 100,000.00 / February 1, 2019

_____________________ Php. 100,000.00 / March 1, 2019

_____________________ Php. 100,000.00 / April 1, 2019

_____________________ Php. 100,000.00 / May 1, 2019

_____________________ Php. 100,000.00 / June 1, 2019

_____________________ Php. 100,000.00 / July 1, 2019

_____________________ Php. 100,000.00 / August 1, 2019

_____________________ Php. 100,000.00 / September 1, 2019

 _____________________ Php. 100,000.00 / October 1, 2019

_____________________ Php. 100,000.00 / November 1, 2019

_____________________ Php. 100,000.00 / December 1, 2019

a) PENALTIES- Payment made after the said date shall be subject to a penalty charge of 5% per
month.

b) WITHOLDING TAX- The LESSEE shall furnish the LESSOR with the original and two copies of
its certificate of creditable income tax withheld at source BIR Form 2307, not later than 5 days
after the end of each month. Failure to submit the documents shall authorize the LESSOR to
automatically add amount to the billing.

c) BOUNCING CHECKS- Issuance of checks with no sufficient funds for three (3) instances shall
compel the LESSEE as having pre terminated the contract and as such the security deposit shall
be considered forfeited in favor of the LESSOR.

d) NON-PAYMENTS OF RENTS- Failure of the LESSEE to pay the rentals herein agreed upon for
two (2) consecutive months shall be ground for termination of this Contract of Lease and upon
which the LESSEE obligates itself to vacate and clear the premises in such tenantable conditions
without need of notice from LESSOR.
 5. SECURITY DEPOSIT and ADVANCE- upon signing of the Contract of Lease,
the LESSEE shall make a Three (3) months deposit and Three (3) month advance rental
in the total amount of _One Hundred Thousand (Php 100,000.00) Philippine Currency
for the full and faithful performance of each and every term, provision, covenant, and
condition of this lease, except that said deposit shall not constitute or substitute payment
of any rent.

The deposit, which is non-interest bearing, shall remain intact during the entire
term of this lease and shall not be applied as payment for any monetary obligations
of the LESSEE under this contract, and shall be refunded to the LESSEE upon
completion of the lease.

a) The amount deposited shall answer for any unpaid accounts of the LESSEE at the expiration of
the contract as well as for any damages which the LESSOR or any of its employees, agents or
guests might suffer by reason of the wrongful acts or actuation, negligence, and or malfeasance
of the LESSEE. It shall not be applied to pay for the last months of occupancy of the premises.

b) Any unappropriated amount of such deposit shall be refundable to the LESSEE within sixty (60)
days from the termination of the contract.

c) In the event that the LESSEE terminates its contract before its term expires, the deposit shall be
deemed forfeited and refundable, regardless of the reason for its pre-termination and whether a
sixty-day notice was given or not.

d) The LESSEE shall pay an advance payment equivalent and applicable to the twelve (12)
months with post dated check dated every _____th of the month of the lease starting
_____________________ or ______ days after signing of contract. The one (1) month advance
rental is applicable on the 12th month of the year of contract. Subsequent post-dated check
payments shall be collected by the LESSOR on an annual basis on the first month of the next
subsequent year.

6. SUBLEASE AND OR TRANSFER OF RIGHTS- The LESSEE shall not directly or

indirectly assign, sublease, sell, transfer, convey, mortgage, demolish or in any manner
 dispose of or encumber its right under the contract in whole or in part or any interest
thereto be conferred on anyone.

7. RIGHT TO INSPECT LEASED PREMISES- The LESSOR or its authorized agent shall, by
previous notice to the LESSEE, have the right to enter the leased premises at any reasonable
hour of the day to examine the leased premises.

8. CARE OF THE LEASED PREMISES- The LESSEE shall examine the Leased Premises before
taking possession thereof, and LESSEE’s entry into possession shall constitute conclusive
evidence or admission by the LESSEE that as of the date thereof, the said Premises were in good
order and satisfactory tenantable condition. The LESSEE hereby binds itself to keep and maintain
the same in such condition as a prudent person shall do under the circumstances, ordinary wear
and tear expected. The LESSEE shall at its own expense, improve and maintain the Leased
Premises clean and free from rubbish and dirt at all times, store all trash and garbage in proper
containers and not burn any trash and garbage in or about the Leased Premises or anywhere
within the Premises.

9. SECURITY & SANITATION- The LESSOR shall ensure the security of the premises and provide
a security guard for the whole commercial establishment where the leased premises are located.
The LESSOR must also ensure regular collection of garbage through the barangay garbage
collector or any private entity which shall be to the account of LESSOR. The LESSOR also agrees
to make the septic tank of the leased premises bigger in order to accommodate more waste
volume in anticipation of more customers using the toilet.

10. INSURANCE TAKEN BY THE LESSEE- The LESSEE shall be required to insure at his own
account any LESSOR approved permanent structure or structures constructed within the
premises with the LESSOR as co-benefactor against fire or total loss of property.
The LESSEE although not required, is also allowed and authorized to insure its own property
taken inside the leased premises, provided that the LESSOR shall be notified in advance of any
and all kinds of insurance over the property therein.
11. BUSINESS PERMITS, TAXES, AND COMPLIANCE AND GOVERNMENT REGULATIONS-
The LESSEE shall be responsible for securing all the necessary governments permits and
licenses for the operation of its business and all costs thereof shall be its sole account. Copies of
the said permits and licenses or any renewal date thereof shall be furnished to the LESSOR not
later than fifteen (15) days from the start of the LESSEE’s business and every renewal date
thereof as required by law.

12. INTRODUCTION OF PERMANENT IMPROVEMENTS- No permanent or fixed improvements

shall be introduced by the LESSEE on the leased premises unless with prior written consent and
approval of the LESSOR. Any such permanent structures, if approved and allowed, shall be upon
the option of the LESSOR registered under the co-ownership of both LESSEE and LESSOR.
Furthermore, the LESSEE shall bear the full cost of the annual real estate taxes of such structures
until expiry of lease contract and full cost of transfer of ownership to LESSOR upon termination
of contract;

13. UTILITIES AND SERVICES- The LESSEE shall be responsible for the installation and
maintenance costs of its own electric current, telephone, water, security and other utility services
in the Leased Premises for the duration of the lease. The LESSEE shall also clear all accounts
with all concerned utility companies upon pre-termination or expiration of contract.

14. REVISION OF LEASE CONTRACT- Both parties may revise this lease contract after six (6)
months to one (1) year in the event that LESSEE assigns the business with a newly-registered
business name.
LESSOR: LESSEE:

R.mondragon C,Mondragon D,Bartolome M,.Bartolome

ROMINA MONDRAGON DANIELA MONDRAGON-BARTOLOME

and CASSIE MONDRAGON and MARGA BARTOLOME,

Signed in the presence of:

Santillan Samson

Jo-ann Santillan Rositania Samson

ACKNOWLEDGEMENT

BEFORE ME, a Notary Public for and in the Cities Digos and Province of Davao del Sur
st
this 1 of January at Zone 3, Digos City personally appeared.

Name ID/Comm. Tax Cert. No. Date & Place

ROMINA MONDRAGON TIN No, 1234556 Jan. 1, 2019 – Zone 3, Digos City,

DANIELA MONDRAGON-BARTOLOME TIN No. 1246774 Jan. 1, 2019 – Zone 3, Digos City,
 Known to me and to me known to be the same persons who executed the foregoing
Contract of Lease consisting of 9 pages including this page of the acknowledgement and they
acknowledge to me that the same is their free and voluntary act and deed.

WITNESS MY HAND AND NOTARIAL SEAL on the date and in the place first above
written.

Type text here

ATTY. PIOLO PACUTE
Notary Public
City of Digos, Province of Davao del Sur
Doc. No: 111; Commissioned Serial No. 73-2014
Page. No: 12; Until December 31, 2022
Book No: _001; PTR No. 2315906, 01-04-2021,Kidapawan City
Series of 2019 IBP No. 136914, 12-28-2020, Pasig City
 ANNEX - D

Notice to End Lease Contract

December 16, 2019

Purok Tabing-ilog,
Zone 1, Digos City,
Davao del Sur,

Dear DANIELA MONDRAGON-BARTOLOME and MARGA BARTOLOME,

We, ROMINA MONDRAGON and CASSIE MONDRAGON, the owner of the 2 Stories
Commercial Building named Ken Afford Arcade that you are currently occupying for
business purposes, is informing you of our decision that we will not renew the
Contract to open a way for the renovation of the building and that the you are
given fifteen days (15) to vacate the premises.

Thank you very much.

R.Mondragon
Yours respectfully,

ROMINA MONDRAGON and CASSIE MONDRAGON

 ANNEX - E

Notice to VACATE

January 31, 2021

Purok Tabing-ilog,
Zone 1, Digos City,
Davao del Sur,

Dear DANIELA MONDRAGON-BARTOLOME and MARGA BARTOLOME,

It has come to ROMINA MONDRAGON and CASSIE MONDRAGON, the owner

of the 2 Stories Commercial Building named Ken Afford Arcade that you are
currently occupying for business purposes, that you have been ignoring your prior
agreement with her to vacate the said property which is Located at Zone 3, Digos
City, covered by Transfer Certificate of Title No. T-11010 with an area of 180 sq.
mtrs. under Tax Declaration No. _______.

Please be advised that you have irreparably breached the provisions of your
contract with the commercial building owner, specifically on the period of use of the
premises based on an extension of thirty (30) days from the original one-year term
or until January 1, 2021. Pursuant to law, the owner/s DEMANDS THAT YOU
VACATE the premises immediately.

If you do not leave, your continued occupancy of the land will be construed as
willful and in bad faith. But your immediate and faithful compliance with this notice
will prevent any further eviction action against you.

Thank you very much.

ATTY. PIOLO PACUTE