CONSUELO BANZON AND HON. ALBERTO Q. UBAY, JUDGE, CFI-RIZAL, BRANCH XXXII, PETITIONERS, VS. COURT OF APPEALS, FLORESTO ARIZALA AND ESTRELLA ARIZALA, RESPONDENTS.

Petition for review on certiorari of the decision dated
May 24, 1977 of the Court of Appeals in CA-G. R. No. SP-06520-R, entitled
“Floresto Arizala, et al., petitioners, vs. Hon. Alberto Q. Ubay, as
Judge, CFI of Rizal, Branch XXXII, et al., respondents,” which set aside
the decision of the Court of First Instance of Rizal (Civil Case No. C-5076).

The facts of the case as found by the Court of Appeals are as
follows:

Herein petitioner Consuelo Banzon is the owner of a duplex
apartment located at 17 Bernadette St., Grace Park, Caloocan City which was
being leased to private respondents herein for a monthly rental of
P180.00. Private respondents have been
staying in the said apartment for about six or seven years. In November, 1975, they stopped paying their
rentals for the reason that the septic tank in the premises had been emitting
foul odor. Private respondents made
demand on petitioner to repair the septic tank but the latter replied that the
former should first vacate the premises. Private respondents did not agree on the ground that the repair could be
done even if they do not vacate the
premises. Private respondents failed to
pay their rentals starting November, 1975 and so in a letter dated February 2,
1976, petitioner made a formal demand on the former to vacate the
premises. Private respondents having refused to vacate the
premises in question, an ejectment case was filed against then on March 3, 1976
in the City Court of Caloocan. The City
Court dismissed the case on the ground that non-payment of rentals was
justified as a valid exercise of herein private respondents’ authority to
suspend the payment due to the failure of the lessor to make the necessary
repairs or to maintain the lessee in peaceful and adequate enjoyment of the
property leased, as provided in Article 1658 of the New Civil Code.

On appeal to the Court of
First Instance, the decision of the City Court was reversed and herein private
respondents were ordered to vacate the premises and to pay the monthly rentals
of P180.00 from November, 1975,
until they vacate the same, plus attorney’s fee of P300.00 and other costs.

Herein private
respondents appealed to the Court of Appeals, and on May 24, 1977, the
appellate court rendered judgment setting aside the decision of the Court of
First Instance of Rizal, Branch XXXII, the dispositive portion of which reads
as follows:

“WHEREFORE, the judgment appealed from is hereby set
aside. In lieu thereof, another one is
rendered (a) ordering the private respondent to repair or remedy the defective
condition of the septic tank complained of by the petitioners; (b) upon the
completion of the work necessary for such purpose, the petitioners are ordered
to pay to the private respondent or to deposit in court the rentals starting
from November 1975 at the rate of P180.00 a month within fifteen (15) days from
receipt of the order of respondent court certifying to the completion of such
work on the septic tank; and (c) in the event of the failure of the petitioners
to pay or deposit such rentals within such time, they shall be evicted from the
premises in question and ordered to return the possession of the same to the
private respondent, and to pay all the rentals in arrears from November 1975
until they shall have vacated the premises. There shall be no costs.

“It is so ORDERED.”^[1]

Not satisfied with the
decision, petitioner Consuelo Banzon filed the present petition for review on certiorari.

In the resolution of
October 24, 1977, the petition was given due course, the filing of briefs and
memoranda were dispensed with and the case was submitted for decision.

On April 23, 1979,
petitioner Banzon filed a “motion to compel private respondents to pay
private petitioner or to deposit in court the rentals starting November, 1975
at P180.00 a month up to the present”^[2] alleging that the repair of the septic
tank has already been completed on October 23, 1976 but no certification of
such completion of work can be made however, because the Court of First
Instance of Rizal, Branch XXXII has lost its jurisdiction, the case being on
appeal before this Court.

In the comment dated May 26, 1979,^[3]
private respondents stated that although the Court of First Instance has lost jurisdiction over
this case, they are willing to deposit the rentals in the said court upon order
of this Court.

In the resolution of June 15, 1979, the Court granted
petitioners’ motion and required private respondents to deposit in the court of
origin the rentals in arrears of P180.00 a month from November, 1975 and
thereafter within ten (10) days from notice.

On September 18, 1979, petitioners filed a “motion for
issuance of writ of execution of the judgment in unlawful detainer action”^[4]
stating that herein private respondents failed to deposit in the court of
origin the rentals in arrears as shown by the certification to that effect by
the Clerk of Court of the City Court of Caloocan. In private respondents’ opposition dated September 18, 1979^[5]
to the aforesaid motion, it was alleged that they deposited with the Clerk of Court of the Court
of First Instance of Rizal the rentals from January, 1977 to June, 1979 in the
amount of P5,400 as shown by the therein attached xerox copy of official
receipt no. 1606599 dated June 28, 1979^[6] and
certification^[7]
of said deposit by the Clerk of Court of said Court. Petitioners filed a brief reply dated October 9, 1979^[8]
stating that private respondents have not deposited the rentals from November, 1975 to December, 1976 and from July,
1979 to October, 1979. Hence, a
manifest­ation dated October 15, 1979^[9] was
filed by petitioners praying that the dispositive portion of the decision of
the Court of Appeals be affirmed and enforced, and that a writ of execution be
likewise issued.

In the opposition dated October 20, 1979,^[10]
private respondents denied not having paid the rentals from November, 1975 to
December, 1976; that the rentals for said months in the amount of P2,280.00 have been deposited on January 17, 1977
with the Clerk of Court of the Court of First Instance of Rizal under official
receipt no. 3002990.^[11]

Upon examination of the records, it appears that on October 23,
1976, Marfil Excavation Service excavated one truck load of sludge from the
septic tank of the premises in question as shown by the job certification^[12]
issued by said contractor. An affidavit
dated June 21, 1977^[13] of
Damon Sy, one of the tenants in the property involved in this case attesting to
the fact of said excavation, was likewise submitted by petitioners.

Private respondents
did not deny that they have not depo­sited the rentals from July, 1979 to October,
1979. Moreover, the amount of P2,280.00
corresponding to the rentals from November, 1975 to December, 1976 or a period
of fourteen (14) months is short of P240.00. The payment should have been P2,520.00. It should be noted that private respondents are presently occupying the
questioned premises and therefore they should make a deposit of rentals as they
become due to compensate the petitioners for having been deprived of possession
of the premises. Failure of private
respondents to deposit on time the
monthly rentals for the use and
occupation of the property gives the petitioners the right to execution of the
decision of the Court of Appeals, affirmance of which was prayed for by
petitioner as above stated.

Private respondents must forthwith be evicted from the premises
because they failed to pay the rentals as ordered by the Court of Appeals
notwithstanding their actual knowledge of
the repair and clearing of the septic tank since as early as October,
1976. As held by the appellate court,
their proper remedy was not to suspend the rental payments under Article 1658
of the Civil Code wrongly invoked by them but to make the urgent repair
themselves and clear the septic tank and charge the cost thereof to petitioner,
as provided in Article 1663 of the Civil Code. But said respondents paid only part of the back rentals only when this
Court ordered them in its June 15, 1979 resolution and still failed
notwithstanding the Court’s order to pay the same in full nor the rentals that
accrued thereafter, without any explanation nor justification.

WHEREFORE, judgment is hereby rendered affirming the
decision appealed from but modified by dispensing with the requirement of an
order of the Court of First Instance certifying to the completion of the repair
of the septic tank, it appearing that private respondents have not paid the
amount of rentals from November, 1975 to the time they had actual knowledge of
the repair of the septic tank within fifteen (15) days from said knowledge
dating as early as October, 1976.

The private respondents are hereby ordered to vacate the premises
in question, to return the possession of the same to petitioner Consuelo Banzon
and to pay all the rentals in arrears at P180.00
monthly from November, 1975 until they shall have vacated the premises,
and to pay costs of suit in all
instances. Said petitioner is hereby
authorized to withdraw the rentals deposited with the Court of First Instance
of Rizal at Caloocan City in the amount
of P2,280.00 under official receipt no. 3002990 (corresponding allegedly
to the rentals from November, 1975 to December, 1976, but with a shortage of
P240.00) and P5,400.00 under official receipt no. 1606599 (corresponding to the
rentals from January, 1977 to June, 1979).

This decision shall be immediately executory upon its
promulgation. To obviate any further
delay in its enforcement, the Division Clerk of Court is directed to issue the
corres­ponding writ of execution of the Court’s
judgment, directly returnable to this Court.

SO ORDERED.

Teehankee, (Chairman), Makasiar, Fernandez, Guerrero, and Melencio-Herrera, JJ., concur.

* The name of Judge Ubay as
presiding judge of the trial court should be excluded as co-petitioner, since
he is not a party in interest. The
Court has time and again ordered the striking out of the names of such judges.

^[1]
Page 29, Rollo.

^[2]
Pages 90-96, Rollo.

^[3]
Page 99, Rollo.

^[4]
Pages 102-108, Rollo.

^[5]
Pages 110-112, Rollo.

^[6]
Page 111, Rollo.

^[7]
Page 112, Rollo.

^[8]
Pages 114-115, Rollo.

^[9]
Pages 117-119, Rollo.

^[10]
Pages 120-123, Rollo.

^[11]
Page 122, Rollo.

^[12]
Page 94, Rollo.

^[13]
Page 95, Rollo.