HORACIO A. GUANZON ET AL., PLAINTIFFS AND APPELLEES, VS. ANG BAN, ANG CHUNG AND TAN KUE, DEFENDANTS AND APPELLANTS.

PERFECTO, J.:

On February 24, 1941, Epifania Vda. de Guanzon and defendant Tan Kue entered
into a written contract of lease of the former’s property located at Nos. 1008
and 1010 Lavezares, Binondo, Manila, at a monthly rental of P130. effective
March 15, 1941, up to March 15, 1946.

Tan Kue abandoned the property in December, 1944, because he evacuated with
his family to Batangas, failing’ to pay the monthly rentals from January,
1945.

Finding defendants Ang Ban and Ang Chung occupying, without any legal ground
at all, the premises abandoned by defendant Tan Kue, the original complaint was
filed on April 28, 1945, for the ejectment of said two defendants. By amendments
in the pleadings, Tan Kue was later included among the defendants in this
case.

Alleging that he returned to Manila in March, 1945, and resided with his
family at 1522-24 Oroquieta, Manila, where he is keeping a business, Tan Kue,
testified that, he failed to offer plaintiff the rents in arrears because he was
very busy. Horacio A. Guanzon testified that Ang Ban and Ang Chung transferred
to the premises in question because their house was burnt; that he required them
to move out of the premises; that on May 4, 1945, Tan Kue.asked him for another
lease upon the premises, with the promise to sue Ang Ban and Ang Chung, but Tan
Kue did not offer . payment of the rents due for the first months of 1945. Ang
Ban alleged that he was left in the premises by Tan Kue to take care of the
latter’s belongings, and that Ang Chung is a mere host from the province.

Judge Mariano L. de la Rosa of the Court of First Instance of Manila rendered
a decision, declaring terminated the lease contract between Epifania Vda. de
Guanzon and Tan Kue and ordering defendants to move out of the premises and to
pay jointly and severally the sum of P130 per month from January, 1945, until
the property is vacated, and the costs.

Appealing from the decision, defendants point out two errors allegedly
committed by the lower court: (1) that it did not dismiss the complaint
notwithstanding plaintiffs’ failure to serve the notice required by section 2 of
Rule 72 of the Rules of Court; and (2) that it did not declare that Tan Kue’s
failure to pay the rents was due to force majeure.

Section 2 of Rule 72 is not applicable in the present case.

Defendant Tan Kue can not invoke it because he was and is not sued for
ejectment in accordance with Rule 72. In the amended complaint of May 21, 1945,
Tan Kue is sued only for a sum of money, consisting of unpaid rents, liquidated
damages, attorney’s fees, and costs.

Defendants Ang Ban and Ang Chung can not also invoke section 2 of Rule 72,
because,they are not tenants of plaintiffs, but are mere intruders.

Whether Tan Kue’s failure to pay the rents was due to force majeure
or not is immaterial for purposes of determining his obligation of paying the
rents due at the time this case was decided in the lower court. Whether he was
justified or not in not paying said rents in due time is irrelevant to the
question of whether he is duty bound to pay said rents. That obligation is not
denied by any one. If there was any reason or justification for delay in the
payment of said rents before, now there is none any more. It appearing from
defendants’ own evidence that Tan Kue had something to do for his co-defendants’
unjustifiably occupying the premises, he is equally responsible for the rents
until Ang Ban and Ancr Chung shall have completely vacated the
property.

Rents due up to March 10, 1945, subject to moratorium (Executive
Order No. 32 and Presidential Proclamation No. 6), the lower court’s decision is
affirmed with the sole modification that it is unnecessary to order the
ejectment, of defendant Tan Kue, it appearing that he has already ceased to
occupy the premises since December, 1944, and his lease contract having been
terminated in accordance with the facts of this case and the terms of the
contract itself, with the costs against appellants. Paras, Pablo, and Bilado,
JJ., concur.

CONCURRING

PADILLA, J.:

I concur in the result. Ang Ban and Ang Chung occupied illegally the premises
at 1008-1010 Calle Lavezares, Manila. They had no contractual relation with the
plaintiffs. The claim that Ang Ban was the caretaker of the lessee. Tan Kue,
cannot be believed. The alleged relation of agent and principal was an
afterthought. Ang Ban’s house at Calle Juan Luna was burned and he together with
Ang Chung moved into the premises at Calle Lavezares when he found that they
were empty.
Tan Kue, the lessee of the premises by virtue of a 5-year lease
contract (Exhibit A), is no longer entitled to hold the premises leased by
him.

Article 1569 of the Civil Code provides that “The lessor may dispossess the
lessee by suit for any of the following causes: * * * 2. Default in^the payment
of the rent agreed upon; 3. Breach of any of the conditions stipulated in the
contract;”

Section 2, Rule 72, provides that “No landlord * * * shall bring such action
against a tenant for failure to pay rent due or to comply with the conditions of
his lease, unless the tenant shall have failed to pay such rent or comply with
such conditions for a period of * * * five days in the case of building, after
demand therefor, made upon him personally, or by serving written notice of such
demand upon the person found on the premises, or by posting such notice on the
premises if no persons be found thereon.

Although no demand for payment of the rentals due and for restitution of the
leased premises had been made upon the lessee personally, it may however be
inferred from the evidence, that the written notice of demand (Exhibit B) served
upon one of the persons found on the premises was handed to the lessee on or
before May 4, 1945. On the 9th, the lessee filed a motion to intervene. On the
21st, an amended complaint was filed joining: the lessee with the original
defendants. On the last mentioned date the statutory notice, as provided for in
section 2, Rule 72, was complied with.

The claim that failure to pay the rentals was due to force majeure
is without merit. Tan Kue’s failure to pay the rentals was inexcusable after the
liberation of Manila and his return to the City in March 1945 to engage, as he
did, in the profitable business of baking bread.

The obligation of Tan Kue to pay the rentals from January 1945 until the
premises shall have been vacated complete by his co-defendants springs from his
contract to pay the rentals until the premises shall have been vacated and their
possession returned to the lessors.