CRESENCIO VIRAY AND BENJAMIN D. DE ASIS, PETITIONERS, VS. HON. INTERMEDIATE APPELLATE COURT AND RUSTICO VICTOR, RESPONDENTS.

It is about a written lease agreement that the case at bar
turns.  The lease concerns residential
premises identified as Apartment A at 1836 Sulu
Street, Sta. Cruz, Manila.  Said lease was executed on April 1, 1981 by
the owner of the place, Benjamin de Asis, and Rustico Victor, as lessee.^[1]
The agreement included stipulations (a) fixing the term of the lease and (b)
governing the lessor’s right of repossession, viz.:

(a. Term of Lease)

“2. 
The term of this lease shall be for a period of three (3) months
and shall be impliedly renewable from month to month under the same terms and
conditions, unless revised by the parties in writing with previous notice to
each other of at least fifteen (15) days.”

(b. Repossession by Lessor)

“7.  Upon failure of the
Lessee to comply with any of the terms and conditions of this lease, as well as
such other terms and conditions which may be imposed by the Lessor
prior to and/or upon renewal of this lease agreement as provided in par. 2
above, then the Lessor shall have the right, upon
five (5) days written notice to the Lessee or in his absence, upon written
notice posted at the entrance of the premises leased, to enter and take possession of the said premises holding in
his trust and custody and such possessions and belongings of the Lessee found
therein after an inventory of the same in the presense
of a witness, all these acts being hereby agreed to by the Lessee as tantamount
to his voluntary vacation of the leased premises without the necessity of suit
in court.”

A duplicate original of the contract was given to the lessee, Rustico Victor.

Sometime in October, 1983, Victor and his wife left for Ontario,
Canada and did not return to the Philippines until February, 1985.  They left the apartment in the care of their
son, Ramon.

Believing that the Victor spouses had abandoned the apartment ­they
having been away for more than a year, and the place being occupied by Ramon
Victor, an unauthorized stranger — De
Asis brought suit in the Metropolitan Trial Court in
December, 1984 to evict the latter.  But
as aforestated, the spouses returned in February,
1985, and on their representation that they did not mean to give up the
apartment, the case was dismissed
on joint motion of the parties dated March 12, 1985.^[2]

It seems, however, that Rustico Victor
did not re-occupy the apartment but continued to leave it in the care of his
son, Ramon.  Later, in the second week of
October, 1985, Ramon himself left for Canada. 
He asked his brother, Roldan, to look after
the place.  But Roldan
Victor did not actually move into the apartment; all he did was to install a
padlock at the main door, visit the place once a week, and sleep there
occasionally.^[3]

When De Asis learned of this state of
affairs sometime in December, 1985, he went to the place to see for himself if
it was true.  He saw there was nobody in
the apartment, but he could not get inside because it was locked.  De Asis then caused
the cutting off of the electrical and water service connections and, on the
following day, posted at the main door of the apartment a notice of termination
of the lease, on the ground of abandonment and failure to pay rentals in
accordance with the contract.  He could
not serve the notice of termination directly on the lessee since he did not
know where the latter was.

In the first week of January, 1986, De Asis
returned to the apartment and noted that the termination notice he had posted
at the door was no longer there.  He
posted another notice, this time announcing that he would repossess the place
after five (5) days in order to secure it from fire, repair it to preserve its
value, and inventory such of the lessee’s things as were inside which might
thereafter be claimed at his residence in Quezon
City.^[4]

De Asis also wrote on January 2, 1986
to the local barangay captain requesting his presence
at the premises on January 5, 1986 at which time he intended to open and
repossess the apartment.  On January 5,
1986, as announced, and in the presence of the barangay
authorities, De Asis had the door of the apartment opened
by a carpenter, and hauled to his residence the things found inside after
making an inventory of them.  Thereafter,
he made repairs on the apartment at a cost of P13,108.00,
and then leased it to Cresencio C. Viray.^[5]

Not long afterwards an action of forcible entry was instituted in
the Metropolitan Trial Court against De Asis and his
new lessee, Viray, by Roldan
Victor in behalf and in the name of his father, Rustico.  The action
was docketed as Civil Case No. 115635-CV and resulted in a judgment rendered on
December 29, 1986 “against the defendants ** De Asis
(owner-lessor) and Sgt. C. Viray
(present occupant) ordering the said defendants to restore plaintiff to the
possession and enjoyment of the leased premises at No. 1836-A Sulu Street, Sta. Cruz, Manila and to pay the costs of this
suit.”^[6] The Metropolitan Trial Court ruled that Rustico Victor could not be deemed to have abandoned the
premises, and even if he had, the apartment could not be repossessed without
judicial action, the stipulation authorizing the lessor
to do so being void as “against public policy and existing
precedents.”

De Asis and Viray
appealed to the Regional Trial Court, without success.  That Court rendered judgment on June 15,
1987, affirming that of the Metropolitan Trial Court.^[7]
It adopted “by reference the findings of fact and conclusions of law ** in
the Decision appealed from;” declared the findings to be “in strict accord with the evidence
presented and the conclusions ** so obviously correct that a detailed
discussion would serve no useful purpose;” and directed “the court of
origin to issue a writ of possession immediately in favor of the plaintiff and
family, and to issue an order directing the immediate return of the personal
belongings of plaintiff taken by defendant Benjamin De Asis
inside the apartment in question that were hauled and/or transported to his
residence in Quezon City on April 15, 1987.”

De Asis and Viray
then appealed to the Court of Appeals. 
Their appeal met the same fate. 
By judgment promulgated on November
27, 1987 by the Fifteenth Division,^[8]
their petition for review was dismissed and the Regional Trial Court’s decision
affirmed.

It is to overturn these three adverse verdicts that De Asis and Viray are now before
this Court.  They ask this Court to rule
favorably to them on two questions of law, viz.:  (a) whether or not the posting in the
premises, in the first week of December, 1985, of notice of termination of the
lease had legally caused its cessation or extinguishment as of December 31,
1985; and (b) whether or not De Asis had “the
legal and contractual right to repossess the premises” without and
independently of prior judicial authority.^[9]

The Court gave the petition due course by Resolution dated June
28, 1989 and required the parties to submit memoranda.  The petitioners submitted their memorandum on
August 23, 1989.  No memorandum was filed
by or in behalf of Rustico Victor within the time
appointed.

It is indisputable that the parties’ written agreement created a
lease on a month-to-month basis.  Such a
lease, therefore, must be construed, by established doctrine,^[10]
as providing a definite period and as terminable by notice at the end of any
given month.

It appears undisputed, too, that the lessor had posted a notice of termination of the lease at
the doorway of the leased apartment and that that notice had subsequently been
noted and removed by the lessee’s representative.  The giving of notice of termination in this
manner is explicitly authorized by Section 2, Rule 70 of the Rules of Court, which
pertinently provides that a demand by a landlord for payment of rent or comply
with the conditions of the lease and to vacate the premises may inter
alia be made “by posting such notice on the
premises if no persons be found thereon.”

The lease having thus been licitly terminated, the lessee, Rustico Victor and his sons became obliged to surrender the
leased apartment to the lessor.  They did not. 
They stayed away from the place and did not show up during the
repossession undertaken by the lessor, announced in
advance through the posting of another notice on the door of the apartment.

What the Victors eventually did was to bring a forcible entry
suit against De Asis on the theory that the
stipulation in the lease contract authorizing repossession by the lessor without court action was void as contrary to public
policy, and De Asis had perpetrated the legally
proscribed act of taking the law into his own hands.

The stipulation referred to does by its terms empower the lessor to repossess the apartment extrajudicially.  It states that ^[11]

“7.     Upon failure of
the Lessee to comply with any of the terms and conditions of this lease, as
well as such other terms and conditions which may be imposed by the Lessor prior to and/or upon renewal of this lease agreement
as provided in par. 2 above, then the Lessor shall
have the right, upon five (5) days written notice to the Lessee or in his
absence, upon written notice posted at the entrance of the premises leased, to enter and take possession of the said
premises holding in his trust and custody and such possessions and
belongings of the Lessee found therein after an inventory of the same in the
presence of a witness, all these acts being
hereby agreed to by the Lessee as tantamount to his voluntary vacation of the
leased premises without the necessity of suit in court.“

It is noteworthy that in an earlier case decided in 1975, Consing v. Jamandre,^[12] this Court sustained the validity of
a substantially identical condition in a written lease agreement, which read as
follows:^[13]

“9.     That in case of
the failure on the part of the SUB-LESSEE to comply with any of the terms and
conditions thereof, the SUB-LESSEE hereby gives an authority to the SUB-LESSOR
or to any of his authorized representatives to take possession of the leased
premises, including all its improvements thereon without compensation to the
SUB-LESSEE and without necessity of
resorting to any court action but
in which case the SUB­-LESSEE shall be duly advised in writing of her failure
to comply with the terms and conditions of the contract by way of reminder
before the take-­over.”

This Court ruled that the stipulation
“is in the nature of a resolutory condition, for
upon the exercise by the Sub-lessor of his right to
take possession of the leased property, the contract is deemed
terminated;” and that such a contractual provision “is not illegal,
there being nothing in the law proscribing such kind of agreement.”^[14]

Similarly, there is considerable authority in American law
upholding the validity of stipulations of this nature.^[15]

“Although the authorities are not in entire accord, the better
view seems to be, even in jurisdictions
adopting the view that the landlord cannot forcibly eject a tenant who
wrongfully holds without incurring civil liability, that nevertheless, where a lease provides that if the tenants
holds over after the expiration of his term, the landlord may enter and take
possession of the premises, using
all necessary force to obtain the actual possession thereof, and that such
entry should not be regarded as a trespass, be sued for as such, or in any wise
be considered unlawful, the landlord may forcibly expel the tenant upon the
termination of the tenancy, using no more force than is necessary, and will not
be liable to the tenant therefor, such a condition in a lease being valid.“

“* * although there is contrary authority, the rule supported by a
substantial number of cases is that despite the effect of forcible entry and detainer statutes, where a lease expressly gives a landlord
a right to use such reasonable force as is necessary in making re-entry and
dispossessing a tenant, when the landlord becomes entitled to possession
because of the termination of the term, the landlord can use force in making
re-entry and dispossessing the tenant.”

Be this as it may, since the lessor (De
Asis) had licitly and efficaciously terminated the
month-to-month lease by notice, and had therefore acquired an affirmative right
of action to judicially eject the lessee after giving notice to vacate, the
existence of such an affirmative right of action constitutes a valid defense
against, and is fatal to any action by the tenant who has been ousted otherwise
than judicially to recover possession. 
So has this Court had occasion to rule, with unassailable logic, it
might be added.  In Apundar v. Andrin,^[16] this Court said:

“In Medel v. Militante
(41 Phil., 526), we held that when the tenant denies his landlord’s title this
gives rise to a right of action on the part of the landlord to recover
immediate possession of the demised premises; and it follows as a necessary
corollary from this proposition that if the landlord acquires possession
peacefully, as in this case, by the mere act of reentry, the tenant cannot
maintain an action to put the landlord out. 
The existence of an affirmative right of action on the part of the
landlord to oust the tenant is fatal to the maintenance of any action by the
tenant.  Otherwise, the absurd result
would follow that a tenant ousted under the circumstances here revealed would
be restored to possession only himself to be immediately put out in a possessory action instituted by the landlord.  To prevent circuity
of action, therefore, we must
recognize the affirmative right of action on the part of the landlord as a
complete and efficacious defense to the maintenance of an action by the
tenant.  Circuitus est evitandus; et boni
judices est lites dirimere, ne lis ex lite
oriatur.

Another consideration based upon an idea familiar to jurisprudence
is equally decisive.  This is found in
one of the implications of the familiar maxim, Ubi jus ibi remedium, the converse of
which is of course equally true, namely: 
Nullum jus nullum
remedium.  Applying
this idea to the case before us, it is manifest that inasmuch as the plaintiffs right of possession has been destroyed, the
remedy is also necessarily taken away. 
Even under the language of the statute itself (Sec. 80, Code of Civ. Proc.), the action of unlawful detainer
does not lie unless the property is unlawfully withheld from the plaintiff, which imports an actual present right of possession in
him.”

Upon the view that the Court thus takes of the facts, the
petition for review on cetiorari must
be accorded merit and relief correspondingly granted to the petitioners.

WHEREFORE, the judgment of the Court of Appeals of
November 27, 1987 in CA-G.R. SP No. 12280, subject of the appeal, is REVERSED
AND SET ASIDE, and another rendered DISMISSING Civil Case No. 115635-CV of the
Metropolitan Trial Court of Manila (Branch 6). 
Costs against private respondent.

SO ORDERED.

Cruz, Griño-Aquino, and Medialdea, JJ., concur.

Gancayco, J., on leave.

^[1]
Rollo, p. 33 (CA Decision, p. 3 [Exh. 1]).  It appears
that for many years prior to the execution of the written lease
agreement, Viray had already been occupying the
premises as lessee under a verbal contract.

^[2]
Id., pp. 33-34 (CA Decision, pp. 3-4)

^[3]
Id., p. 34

^[4]
Id., pp. 34-35 (CA Decision, pp. 4-5)

^[5]
Id., p. 35 (CA Decision, p. 5)

^[6]
Id., pp. 42-45; the judgment was rendered by Hon. Pedro M. Areola

^[7]
Id., p. 41.  The appeal was
docketed as Civil Case No. 87-39807 and the judgment was written by Hon. Doroteo N. Cañeba, presiding
Judge of Branch 20 of the Manila RTC.

^[8]
Id., pp. 31-40.  The decision was
written for the 15th Division by Ejercito, J.,
with whom concurred Chua and Lapeña, JJ.

^[9]
A third issue sought to be raised, whether or not the lessee had abandoned the
leased premises, is obviously a factual
one, not proper for review by the Supreme Court.

^[10]
Rantael v. C.A., 97 SCRA 453; Cruz v. Puno, Jr., 120 SCRA 384; Madriaga
v. C.A., 163 SCRA 461; United Realty Corp. v. C.A., 183 SCRA 725;
Uy Hoo &
Sons Realty Dev. Corp. v. C.A., 174 SCRA 100; Palanca v. I.A.C., 180
SCRA 119

^[11]
Italics supplied

^[12]
64 SCRA 1

^[13]
Italics supplied

^[14]
Citing (1) Froilan v.
Pan Oriental Shipping Co., 12 SCRA
276, 286 (1964) to the effect that the right to rescind in reciprocal
obligations is necessarily implied; that nothing prevents the parties to a
contract to agree that a violation thereof cancels the same even without court
intervention; and (2) De la Rama Steamship Co. v. Tan, 99 Phil. 1034, to the effect that judicial permission to
rescind or cancel is necessary only if there be no stipulation to this effect.

^[15]
22 Am Jur, p. 916; and Am Jur
2d, Sec. 1220, pp. 104-105

^[16]
42 Phil. 356, 361-362