TOMAS MAPUA ET AL., PETITIONERS, VS. SUBURBAN THEATRES, INC., RESPONDENT.

On June 24, 1941, plaintiffs Tomas Mapua et al, leased to the
defendant Suburban Theaters, Inc. the building named Cine Apolo
situated at 1348 Rizal Avenue, City of Manila, for a period of three
years beginning July 1, 1941, extendible to another three years with
rental at the rate of P700 a month. The stipulation regarding extension
reads as follows:

“El termino del arrendamiento es de tres años, a partir del dia 1.^o
de Julio de 1941, prorrogable a otros tres afios a opcion de ambas
partes, mediante notificacion por escrito dos meses antes de la
explracion de este contrato.”

It seems that in spite of the expiration of the period of three
years in 1944, the defendant entity continued in possession of the Cine
Apolo paying the sum of P1,000 a month as rental. Because of the
extension which said entity had been asking for from time to time, by a
letter (Exhibit B) dated May 28, 1945, addressed to Francisco Santa
Maria, manager of the defendant company, plaintiff Tomas Mapua stated
that in confirmation of the conversation had between him and a
representative of the defendant, the owners of the Cine Apolo had
agreed to again extend the term of the lease until June 30, 1945,
warning him however that said owners beginning July 1, 1945, were going
to take over the management of the Cine for which reason he (Santa
Maria) was requested to vacate the building before that date.

In answer to said letter, Atty. Jose O. Vera, counsel for the
defendant wrote the letter (Exhibit C) dated June 3, 1945, expressing
the gratitude of the members of the Suburban Theaters Inc. for the
extension of one month given, at the same time praying that said entity
be permitted to continue with the lease, pleading in support of said
prayer the fact that said entity had been the lessee of the plaintiffs
for about 20 years, paying regularly the rentals due, even of its own
initiative increasing said rental when its business so justified. He
insinuated the readiness of the defendant entity to perhaps increase
the rentals as may be gleaned from the following portion of his letter
which we quote:

“* * * Debido a la destruccion enorme de tropas
Americanas, se nota una alza enorme en los alquileres y un ingreso
mayor en las taquillas de cines y teatros. Esto, sin embargo, es
artificial y pasajero, como Ud, comprende. * * *

“Representantes de la corporacion se veran con Ud. portando esta carta.
Creo que la cuestion de los alquileres al tenor de los tiempos se puede
arreglar satisfactoriamente. Ojala, asi suplico, merezcan favorable
consideracion.”

The parties, however, would appear to have failed to come to an
agreement about a further extension,for on July 9, 1945, the plaintiffs
filed a complaint in the Municipal Court of Manila for ejectment asking
that the defendant be ordered to vacate the building, Cine Apolo, and
to pay P1,000 representing the rental due for the month of July, 1945,
plus the rentals from August, 1945, until the defendant vacated the
premises. After hearing, the Municipal Court dismissed the complaint
without pronouncement as to costs, upholding the contention and theory
of the defendant that the period of lease had been extended from July
28, 1944 for another three years.

The plaintiffs appealed to the Court of First Instance; where
instead of reproducing their complaint in the Municipal Court, they
filed an amended complaint dated October 11, 1945, with the prayer that
the defendant be ordered to vacate the premises and to pay the rentals
of P1,000 a month from July to October, 1945, and the sum of P10,000 as
the reasonable compensation for the use and occupancy of the building
from November, 1945, until defendant finally vacated the same. Acting
upon a motion of defendant-appellee to dismiss the amended complaint on
the ground that it alleged a cause of action not raised in the lower
court, the Court of First Instance of Manila by order of November 2,
1945, granted said motion to dismiss, at the same time giving the
plaintiffs five (5) days within which to amend their amend complaint.
Plaintiffs duly excepted to said ruling on November 6, 1945, and on the
same date, filed their second amended complaint in which the prayer for
rental was limited to P1,000 a month corresponding to July, 1945, and
such other rentals as have become due and demandable until defendant
finally vacated the building.

After hearing, the decision dated May 15, 1946, the trial court
found that after the period of the lease expired, the lease had been
tacitly extended from month to month as provided for in Art. 1581 of
the Civil Code and ordered the defendant to vacate the Cine Apolo, and
to pay P1,000 a month from July, 1945 until the building was vacated.
The plaintiffs appealed from the order of the trial court of November
2, 1945 dismissing their amended complaint as well as from that portion
of the decision of the trial court which fixed at P1,000 a month the
reasonable compensation for the use and occupation of the Cine Apolo.
The defendant also appealed from the decision, contending that the
lower court erred in interpreting the contract as having been extended
from month to month instead of the agreed extension period of three
years.

Both appeals eventually reached the Court of Appeals. As regards
the appeal of plaintiffs, involving as it did only questions of law, it
was indorsed or elevated to the Supreme Court where it was docketed
under G.R. No. L-797.

Pending consideration of the appeal in the Court of Appeals, that
Tribunal was advised on July 7, 1947, that appellant Suburban Theaters
Inc. had already vacated the Cine Apolo, the building in question on
June 30, 1947, Ruling that the main question submitted in the appeal
has already become moot, the Court of Appeals by a resolution
promulgated on June 25, 1948, dismissed the case without pronouncement
as to costs.

Counsel for the plaintiffs on June 30, 1948, moved for a
reconsideration of the said resolution asking for a clarification of
the same with a statement that the decision of the lower court had been
affirmed, and that defendant’s appeal has been dismissed because the
question thus raised has become moot; or that a decision on the merits
of defendant’s appeal be made. No action seems to have ever been taken
on that motion. Then, on June 24, 1948, the Supreme Court in G.R. No.
L-797, which was the appeal of the plaintiffs elevated to it by the
Court of Appeals, promulgated a resolution returning said appeal to the
Court of Appeals on the ground that the appeal from the order of
November 2, 1945 was merely an incident in the appeal from the judgment
of May 15, 1946, and could not be prosecuted independently or
separately from the latter, and inasmuch as the appeal from the judgment
of May 15, 1946 involved questions of fact and law, it must be taken
cognizance of by the Court of Appeals.

Considering both appeals of the plaintiffs and the defendant, the
Court of Appeals on September 15, 1948, promulgated a decision wherein
it held that the trial court did not err in dismissing the plaintiffs’
amended complaint dated October 11, 1945, and in limiting the monthly
rental of the building in question to P1,000 for the entire period of
unlawful detainer for the reason that in the opinion of said appellate
Tribunal the amended complaint completely changed the theory and the
nature of the cause of action in the Municipal Court. Reiterating its
opinion contained in its resolution of June 25, 1948, it again
dismissed the case on the ground that the principal question raised by
the defendant in its appeal had become moot.

The plaintiffs as petitioners have now filed the present petition
for certiorari to review said decision of the Court of Appeals.

The first question to be determined is whether after re-amending
their amended complaint of October 11, 1945, so as to conform to the
one filed in the Municipal Court, because of the adverse order of the
trial court of November 2, 1945. the plaintiffs may still on appeal
question the legality and propriety of the trial court’s order
dismissing their amended complaint. It will be recalled that plaintiffs
duly excepted to the order of the court and as shown by the record of
the case, in open court they reserved their right to question the said
ruling on appeal.

While in some jurisdictions, it is a rule that a waiver of an
exception to an adverse ruling on a demurrer results when the demur rant
pleads over and goes to trial on the merits, other jurisdictions follow
the rule that the right to a review of a ruling on a demurrer to a
pleading cannot be denied because the complaining party goes to trial,
takes proof, and a verdict and judgment result. (3 Am. Jur. 54.)

We believe and hold that the sound rule to be followed in our
jurisdiction and under our law is that when a demurrer to a complaint
(motion to dismiss) is sustained, (under the new Rules of Court,
demurrer has been eliminated and in its place we now have the motion to
dismiss,—Rule 8), the plaintiff may except to the court’s ruling if he
wishes, altho now, exception is no longer necessary, reserve his right
to have said ruling reviewed on appeal and amend his complaint so as to
conform itth the order of the court. By so doing and by pleading over
he does not lose his right to appeal from the ruling.

“As a general rule, if a party, after an order or judgment upon
demurrer to pleadings is given against him, under leave of court,
amends the pleading demurred to, or substitutes another therefore so as
to remove the grounds of the demurrer, he acquiesces in the judgment or
order upon the demurrer, and will not be permitted to appeal therefrom,
or, unless an exception is duly saved, to assign it for error in the appellate court, * * *.” (4 C. J. S. 399)

We then come to the principal legal point in issue—whether the
amended complaint of the plaintiffs filed by them of October 11, 1946,
was admissible and did not violate any rule of good pleading and
practice.

There is no dispute as to the rule that the parties on appeal to
the Court of First Instance may not in their pleadings therein change
the nature of the cause of action raised and pleaded in the inferior
court. Did the plaintiffs in their prayer in their amended complaint
asking for the payment by the defendant of P10,000 a month as the
reasonable compensation for the use and occupancy of the theater from
November 1, 1945, until defendant vacated the premises change the cause
of action raised in the municipal court where they asked for only
P1,000 a month as rental from July 1, 1945, plus the rentals that may
be due for August, 1945 until the premises were restored to them? We do
not think so. Almost invariably, a complaint in ejectment or unlawful
detainer is accompanied by a prayer for the payment of rentals,
reasonable compensation for the use of the property or damages,
depending upon whether there was a contract or agreement between the
plaintiff and the defendant as to the amount to be paid for the use of
the premises or whether there was now such agreement for the reason that
the premises were being illegally detained. In either case, whether the
amount involved is denominated rental or reasonable compensation for
use, it is the amount to be found by the court on the basis of the
evidence, as justly due to the plaintiff for the occupation of the
property leased or detained, a sum called rental when agreed upon by
the parties, and reasonable compensation or damages in the absence of
such agreement. In the present case we should bear in mind that
according to the complaint in the Municipal Court the plaintiffs had
demanded the return of the premises to them by the defendant since
June, 1945. In other words, beginning with July of that year there no
longer was a lease agreement between the parties and that from the
point of view of the plaintiffs the defendant was illegally detaining
the building. There could therefore have been no agreement between the
parties as to rentals for the use of the building detained. The
plaintiffs in their original complaint chose to demand only the amount
of P1,000 per month beginning with the month of July until the building
was restored to them and called that amount “rental”. They could
equally have demanded more than P1,000 and called it “reasonable
compensation” for the use of the premises.

The idea that we wish to convey is that the amount demandable and
recoverable from a defendant in ejectment proceedings regardless of its
denomination as rental or reasonable compensation or damages, flows
from the detainer or illegal occupation of the property involved and as
admitted in respondent’s brief, p. 10, is merely incidental thereto. In
the present case, the cause of action in the Municipal Court was the
alleged detainer of the building by the defendant after the expiration
of the period of the lease and after the plaintiffs had refused with
due notice to continue with the month to month tacit extension of the
lease. The amount to be paid by the defendant for such illegal use and
as demanded by the plaintiffs, was merely an incident to and
flow&iv; from the cause of action. From this, it should be clear
that by filing an amended complaint on appeal in the court of first
instance and praying for payment by the defendant for the detainer or
illegal occupation of the theater after July, 1945, a monthly rental of
P1,000 from July 1st to October 31st and the sum of P10,000 a month
from November 1st as reasonable compensation for the occupancy of the
theater, the complaint did not change the cause of action raised in the
Municipal Court, It merely increased the amount payable and collectible
from the defendant flowing from the same cause of action raised in the
Municipal Court, The following authorities are pertinent.

In the case of Edward P. Merrill vs. Marietta Torpedo
Company, involving a Judgment in plaintiff’s favor in an action to
recover damages for injuries, appealed to the West Virginia Supreme
Court of Appeals, we quote a pertinent portion of the appellate
tribunal’s decision:

“Plaintiff was permitted to amend his declaration,
and did so by adding thereto five additional, counts, and by enlarging
his damages to $20,000, instead of $10,000, as in his original
declaration and the overruling of defendant’s demurrer to the amended
declaration is assigned as error. It is insisted that it in effect
alleges a new cause of action. The amended counts simply describe with
more particularity the manner in which the injury occurred than was
done in the original declaration. It was clearly no departure from the
original declaration, either in respect to the averments of defendant’s
duty in the premises, or the acts of negligence complained of. The
amendment is beneficial rather than prejudicial to the defendant,
because it more certainly informs it of the particular acts of
negligence which plaintiff expected to prove. Increasing the damages certainly constituted no new cause of action.
Courts are very liberal in allowing a plaintiff to amend so long as
there is no departure from the original cause of action. There is no
departure in this case. Increasing the amount of damages is not a departure. Bentley vs. Standard F. Ins. Co. 40 W. Va. 729, 23 S. E., 584; Clarke vs. Ohio River R. Co. 39 W. Va. 732; 20 S.E. 696; and Hoggs, PI. & Forms, sec. 190, note 5.” (L.R.A., 1917-F, p. 1047.)

In the case of Samuel D, Hall vs. Pennsylvania Railroad Company, a
cross appeals from a judgment of the Court of Common Pleas for
Philadelphia County to the Pennsylvania Supreme Court, involving
recovery of damages for unlawful discrimination in freight rates, the
appellate court ruling on the question whether an amendment to a
complaint increasing the amount of damages sought was equivalent to
setting up a new cause of action, said:

“The action of the court below in the present case
makes it clear that no treble damages were included in the verdict, and
the question, therefore, is whether the amendment offered at the trial,
followed by the motion for treble damages, sets up a new cause of
action which was barred by the Statute of Limitations, because the
claim was not made within six years following, the time the fraud was
discovered in September, 1905. The proposed amendment of April 18,
1913, increases the damages claimed in the first paragraph of the
statement of claim to $400,000. This additional damage claimed is
not by virtue of a distinct cause of action, but merely increases the
amount of plaintiff’s claim for the cause already alleged in the
original statement.” (L.R.A., 1917-F, p. 418)

In this connection we may add that amendments to pleadings are
favored and should be liberally allowed in the furtherance of justice
(Torres vs. Tomacruz, 49 Phil. 915). The end to be achieved
in such liberality is to determine all the differences and matter in
dispute in the action between the parties in a single proceeding, to
avoid multiplicity of suits. Rule 17, section 2 of the Rules of Court
clearly embodies this theory.

Another question that may be asked is whether a change in the
amount collectible from the defendant, especially an increase, is
reasonable. If circumstances justify the change or increase there can
be no valid objection. One must bear in mind that damages or reasonable
compensation in illegal detainer are continuing and changeable in
nature. The allegations in the complaint in the Municipal Court in an
ejectment case are naturally based on the circumstances and conditions
then obtaining. But such conditions may have radically changed by the
time the appeal reaches the Court of First Instance, The tax assessment
may have been materially increased, even doubled with the corresponding
increase in real estate taxes. New taxes may have been imposed not only
on the property involved but also on the business of the owner of said
property, such as the tax on real estate dealers who give out lots or
buildings or both for rent. All these, may justify an Increase in the
reasonable compensation for the use of property. Were the plaintiff on
appeal to be precluded from amending his complaint so as to increase
the amount of his demand for the use of his property, what remedy would
remain to him? Must he and could he bring another action to collect the
increase? Plaintiffs may not be accused of mistake or negligence in
limiting their claim in the original complaint to P1,000 a month
because they could not perhaps without departing from the truth ask for
more than what the conditions and circumstances obtaining at the time
that he filed his complaint in the Municipal Court warranted.

“The assessment of damages is usually governed by
the situation or condition of affairs existing at the time the action
is brought; hence for a recovery of loss or damages occurring
thereafter plaintiff should amend or file a supplementary petition.”
(17 C. J. 1000.)

But this rule we are now laying down la not for the benefit of the
plaintiff in every case. It may equally accrue to the benefit of the
defendant, A change in conditions may be just the reverse. By the time
the appeal reaches the Court of First Instance, similar new properties
and buildings may have been made available for lease and occupancy.
Taxes may have been reduced, or even eliminated. The business for which
the property involved was devoted may have decreased, gone down or
deteriorated so as to work a radical reduction of the reasonable
compensation for its occupancy. Surely, at the trial, the defendant
occupant may take advantage of and plead this change in conditions so
as to substantially reduce the amount collectible from him.

Anent this proposed increase in the reasonable compensation for the
use of the Cine Apolo, we may recall that according to Atty. Jose O.
Vera himself, speaking as a lawyer for the defendant, thru his letter
(Exhibit C), after liberation due to the great destruction of buildings
in Manila, during the battle of liberation, there was an enormous
increase in building rentals and box office receipts in movie houses
(like Cine Apolo), and he intimated that an increase in the rental of
the building could be satisfactorily arranged. The increase proposed by
the plaintiffs was therefore nothing new to the defendant, nor was it a
surprise to it in the matter of its defense. As a matter of fact, as
emphasized by petitioners in their brief, the increase was intended to
commence and become due only on November 1, 1945, more than half a
month from the filing of the amended complaint on October 13, 1945.
There seems to be no inequity or unfairness in the whole arrangement.
As to the amount of the increase, that is entirely a matter of evidence
to be submitted at a new trial by both parties.

In conclusion, we hold that in a case of unlawful detainer or
ejectment appealed to the Court of First Instance, the plaintiff may
amend his complaint so as to increase the amount sought by him as
reasonable compensation or damages for the use and occupation of his
premises detained, over and above that claimed by him in his complaint
in the Municipal on justice of the Peace Court. When a motion to
dismiss such amended complaint is sustained and granted by the trial
court, and the plaintiff pleads over, amends his amended complaint so
as to conform ……. the order of the court and goes to trial, he may
still on appeal question the validity and correctness of said order of
the trial court, especially if he has made of record his
non-acquiescence in said ruling or order and his intention to have the
same reviewed on appeal.

In view of the foregoing, we set aside the order of the trial court
of November 2, 1945 and reverse its decision of May 15, 1946, in so far
as it limits to P1,000 the amount payable to the plaintiffs petitioners
for the use and occupancy of the Cine Apolo from November 1, 1945,
until the building was vacated by the defendant; in all other respects
said decision is affirmed. The decision of the Court of Appeals is
reversed in so far as it holds that the trial court did not err in
dismissing plaintiffs’ amended complaint of October 11, 1945, and in
limiting the monthly rentals of the building in question to P1,000 for
tie entire period of unlawful detainer. In all other respects said
decision is affirmed.

Let this case be returned to the trial court for a new trial for the
reception of evidence regarding the reasonable compensation for the use
and occupancy of the building, Cine Apolo, from November 1, 1945 until
it was vacated by the defendant. Thereafter, the trial court will
render decision on the basis of said evidence fixing said amount to be
paid the plaintiff by the defendant, said decision to form part of the
decision already rendered on May 15, 1946, Responds pay costs.

Moran, C.J., Ozaeta, Pablo, Bengzon, Tuason, and Reyes, JJ., concur.