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REPUBLIC OF THE PHILIPPINES National Capital Region City of MANILA

MUNICIPAL TRIAL COURT Branch No. _____

MARIA S. DALUZ Plaintiff,

- versus -

Civil Case No. _________ For: Ejectment

PEDRO P. PALMA Defendant, x-------------------------------x

POSITION PAPER WITH REQUEST FOR DISMISSAL


(For the Defendant)

DEFENDANT, through counsel, unto this Honorable Court, most respectfully submits his hereunder Position Paper, in support of his enumerated causes of actions in his answer and avers:

PREFATORY STATEMENT

Defendant is the owner and occupant of the disputed piece of property located at 1028 Ibarra St., Sampaloc, Manila; and that, he has been given the right to own and occupy the aforementioned property by its owner, Mario Juan since 1975;

The answer to the verified complaint for ejectment and in the pre-trial brief filed by herein Defendant prayed for a judgment in his favor as regards to the award of ownership and occupancy of the contested property; the dismissal of this suit, award for moral damages amounting to One Hundred Fifty Thousand Pesos (Php 150,000.00) and, against the plaintiff Maria S. Daluz, to provide for Fifty Thousand Pesos (Php 50,000.00) in attorneys fees and the costs of this suit.

Consonant to the above, Defendant is entitled to all that he is claiming in the instant proceedings.

STATEMENT OF FACTS

The allegations of the ultimate facts of the Defendants Answer, dated July 14, 2011, are quoted herein below:

x x x .. 1. That he denies paragraphs 2 and 3 of the complaint; and, that he is without knowledge to form a belief as to the truth of the averments made in them;

2. That he denies specifically each and every material allegation made in the complaint and alleges that he has been the owner and occupant of the disputed piece of property located at 1028 Ibarra St., Sampaloc, Manila; and that, he has been given the right to own and occupy the aforementioned property by its owner, Mario Juan since 1975;

3. And as an affirmative defense, the defendant alleges that he has received only one (1) and not two (2) demand letters as stated in the paragraph 3 of the plaintiffs complaint, contrary to the allegation of the existence of a final letter of demand;

4. As counterclaim, the defendant alleges against the plaintiff that the latter has been harassing and causing undue emotional stress to him and his family by pursuing this suit and thereby placing him and his family in constant fear of losing their family home. . x x x

STATEMENT OF THE ISSUES

1. Is the Defendant, as the lawful owner of the disputed property, entitled to seek the award of the said property to his possession and enjoyment by the Honorable Court through the dismissal of this suit?

2. Is the Defendant entitled to moral damages, attorneys fees, and the costs of this suit?

POSITION OF THE DEFENDANT 1. Yes. The defendant, being the lawful owner of the disputed property in entitled to its possession and enjoyment through the dismissal of this suit, on the basis of the absence of the existence of a final notice of demand. As stated in Sec. 3 Rule 17 of the Revised Rules of Court If, for no justifiable cause, the plaintiff fails to appear on the date of the presentation of his evidence in chief on the complaint, or to prosecute his action for an unreasonable length of time, or to comply with these Rules or any order of the court, the complaint may be dismissed upon motion of the defendant or upon the court's own motion, without prejudice to the right of the defendant to prosecute his counterclaim in the same or in a separate action. This dismissal

shall have the effect of an adjudication upon the merits, unless otherwise declared by the court.

2. As to the second issue, yes the defendant is entitled to these claims, since

the plaintiff has caused undue emotional stress to the defendant and his family by pursuing this suit and thereby placing him and his family in constant fear of losing their family home, and the amount demanded for is technically an award for moral damages amounting to One Hundred Fifty Thousand Pesos (Php 150,000.00); and, the plaintiff must provide for Fifty Thousand Pesos (Php 50,000.00) in attorneys fees and the costs , as she has caused the commencement of this suit in court.

PRAYER

WHEREFORE, premises considered, it is hereby respectfully prayed of this Honorable Court to render judgment in favor of the Defendant for ownership of the premises of the above-contested property and for the award of monetary claim and other relief as the Court may deem fit.

Manila, August 23, 2011.

(Signed) Atty. Alan D. Maligalig Counsel for the Defendant PTR No.070614 MCLE No. 54322-A Roll of Attorney No. 35651 Maligalig, Mabalisa, & Associates 810 Kadiwa St., Quiapo, Manila 1001 admaligalig@hotmail.com

VERIFICATION

I, Pedro P. Palma, after having been sworn in accordance with law, deposes and says: That he is the defendant in the above-entitled case; that he has caused the above-position paper to be prepared and has read and knows the contents thereof; that the allegations therein are true of his own knowledge.

(Signed) Pedro P. Palma

SUBSCRIBED and sworn to before me, in the city of MANILA, this 10th day of August, 2011, by Pedro P. Palma with Tax Identification Number 235-005-678 issued at the city of MANILA on July 17, 1971. (Signed) Atty. Alan D. Maligalig Counsel for the Defendant PTR No.070614 MCLE No. 54322-A Roll of Attorney No. 35651 Maligalig, Mabalisa, & Associates 810 Kadiwa St., Quiapo, Manila 1001 admaligalig@hotmail.com

Doc. No. 48 Page No. 10 Book No. 12 Series of 2011.

Copy furnished with registered mail: Atty. Lani D. Mapacali Mapacali, Mapalagay, & Associates 1820 Wainwright Ave., Manila 1006

EXPLANATION
Service of copy to the Plaintiff and her counsel were done by registered mail due to lack of manpower to effect personal service.

(Signed) Atty. Alan D. Maligalig