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Republic of the Philippines

12th Judicial Region
REGIONAL TRIAL COURT
Branch 13
AAAA

BBBB, SPECIAL CIVIL CASE

Petitioner, No. 2017-123456

-versus- -for-

CCCCC, Injunction with Prayer

Defendant. for Urgent Issuance of
Temporary Restraining
x------------------------------x Order

COMMENTS
(with Opposition to the Issuance of Writ of Preliminary
Injunction, Urgent Recall of the Temporary Restraining Order,
Counterclaim and Notice of Entry of Appearance)

COMES NOW the Defendant CCCC, assisted by Counsel,

and unto this Honorable Court, most respectfully SUBMITS his
COMMENTS and VIGOROUS OPPOSITION to the Petition with
entry of appearance, as follows:

1. The undersigned counsel most respectfully enters his

appearance as counsel for the respondent and
respectfully prays that all orders, notices and other court
processes issued and/ or to be issued in connection with
the instant case as well as pleadings to be filed by
parties be also furnished to the undersigned counsel at
his address herein- below given;

THE CASE
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Before this Court is a Petition for Writ of Preliminary

Injunction enjoining the defendant from closing the portion of the
lot it owned adjoining the lot of the AAA being used as ingress
and egress of the petitioner.

FACTUAL AND PROCEDURAL ANTECEDENTS

2. That CCCC has been in the progress of enclosing and

fencing all the properties it owns as necessary
requirement before the ground breaking ceremony of the
Construction of XYM Mall Building with all the necessary
coordination with San Juan Hall and other government
agencies thereto required;

3. That almost all of the property boundaries that need to

be enclosed have been fenced already except the small
portion of its property that has been temporarily used by
the petitioner as access to the road by mere tolerance of
the previous owner of the lot;

4. That CCCC was informed by the previous owner of its

property that it has not granted any road right of way or
constituted any easement on the parcel of land in favor
of herein petitioner;

5. That an offer was made by AAA for the CCCC to purchase

its property consisting of 1,614 square meters in an
amount so exorbitant and excessive. Hence, this offer
was not acceptable to CCCCC;
6. Hence, respondent CCCCC submits this Comment which
pleads for the dismissal of the petition, denial of the
prayer for injunctive relief, and recall of the temporary
restraining order.

GROUNDS FOR THE DISMISSAL OF THE PETITION

I.
THE PETITIONER DOES NOT HAVE CAUSE OF ACTION

GROUNDS IN OPPOSITION TO THE ISSUANCE OF

WRIT OF PRELIMINARY INJUNCTION AND IN
SUPPORT OF THE URGENT MOTION TO RECALL THE
TEMPORARY RESTRIANING ORDER
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I.
PETITIONER HAS NO CLEAR AND POSITIVE
RIGHT AND DOES NOT SUFFER FROM ANY FORM
OF IRREPARABLE INJURY WHICH SHOULD BE
PROTECTED BY THE ISSUANCE OF AN
INJUNCTIVE RELIEF

II.
THE RESTRAINING OF THE FENCING OF THE ADJOINING
PROPERTY OF THE CCCC RESULTS TO CONTINUOUS DELAY
IN THE SCHEDULE OF OPERATION AND CAUSES SERIOUS
AND IRREPARABLE DAMAGES TO THE TCKI

DISCUSSION

THE PETITIONER DOES

HAVE CAUSE OF ACTION
AGAINST THE DEFENDANT

7. A cause of action is the delict or wrong by which one

party violates the rights of the other. The petitioner does
not have cause of action against the respondent for it
has not committed or omitted any action which violates
the rights of the petitioner. The allegations in the
complaint do not show that the plaintiff has any right or
the defendant has committed any wrong if, assuming
arguendo, received the notice of fencing on February 1,
2017 only;

8. That AAA as it admitted in its complaint that it was

already aware of the projected fencing of the properties
adjoining its registered property and it is even informed
that anytime soon, CCCC will be fencing the properties it
acquired;

9. Verily, if assuming that herein petitioner is sincere and

serious in transferring all the utility lines that allegedly
encroached in the property of CCCCC, it could have
started doing it from the time the representatives of both
parties have met and agreed;

10. That looking for new route to be used as ingress and

egress of the petitioner is something that would not take
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that unreasonable period of time because XYS agreed

already that his property can be used as the new
passage for the petitioner which the same is nearer,
more convenient and accessible to the road;

11. That until this very moment, the petitioner has not
started doing any single act of clearing the new passage
it can use;

12. That Parties who do not come to court with clean

hands cannot be allowed to profit from their own
wrongdoing1. The action (or inaction) of the party
seeking equity must be free from fault, and he must
have done nothing to lull his adversary into repose,
thereby obstructing and preventing vigilance on the part
of the latter;2

13. In absence of any cause of action against the

defendant and considering the long standing doctrine
that one who seeks equity must do equity, and one who
comes into equity must come with clean hands, the
DISMISSAL of the instant petition is warranted;

PETITIONER HAS NO CLEAR

AND POSITIVE RIGHT AND
DOES NOT SUFFER FROM ANY
FORM OF IRREPARABLE INJURY
WHICH SHOULD BE PROTECTED
BY THE ISSUANCE OF AN
INJUNCTIVE RELIEF

14. The petitioner has no clear and positive right sought

to be protected by this Honorable Court. A clear legal
right means one clearly founded in or granted by law or
is enforceable as a matter of law.3 In the absence of a
clear legal right, the issuance of the writ constitutes
grave abuse of discretion. The possibility of irreparable

1 People v. Punto, 68 Phil. 481, 482 (1939).

2 DPWH vs. Quiwa citing (Kentland Coal & Coke Co. v. Elswick, 167 Ky., 593; 181 S.
W., 181, 182, 183.) G.R No. G.R. No. 183444 February 12, 2012
3 Soriano v. People, G.R. No. 162336, 1 February 2010, 611 SCRA 191.
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damage without proof of an actual existing right is not a

ground for injunction;4

15. The rule on preliminary injunction is governed by Rule

58 of the Rules of Court, Section 3 which provides:

Section 3. Grounds for issuance of preliminary injunction.

A preliminary injunction may be granted when it is established:

(a) That the applicant is entitled to the relief demanded, and

the whole or part of such relief consists in restraining the
commission or continuance of the act or acts complained of, or in
requiring the performance of an act or acts either for a limited
period or perpetually;

(b) That the commission, continuance or non-performance of

the act or acts complained of during the litigation would probably
work injustice to the applicant; or

(c) That a party, court, agency or a person is doing,

threatening, or is attempting to do, or is procuring or suffering to
be done some act or acts probably in violation of the rights of the
applicant respecting the subject of the action or proceeding, and
tending to render the judgment ineffectual.

16. That Case law provides the general requisites that

must be proven before a writ of preliminary injunction
can issue:

(1) The invasion of the right is material and substantial;

(2) The right of complainant is clear and unmistakable; and

(3) That there is an urgent and paramount necessity for the

writ to prevent serious damage;5

17. The grant of the writ is conditioned on the existence of

the movants clear and positive rights which should be
protected. A clear legal right means one clearly founded
in or granted by law or is enforceable as a matter of
law. Absent any clear and unquestioned legal right, the
issuance of an injunctive writ would constitute grave
abuse of discretion on the part of the court. Injunction is
not designed to protect contingent, abstract or future
right whose existence is doubtful or disputed. It cannot
be grounded on the possibility of irreparable damage

4 AUSTRALIAN PROFESSIONAL REALTY, INC.,vs. MUNICIPALITY OF PADRE GARCIA

BATANGAS PROVINCE, G. R. No. 183367 March 14, 2012

5 Office of the Ombudsman v. De Chavez. G.R No. 175506, 3 July 2013

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without proof of an actual existing right. Sans that proof,

equity will not take cognizance of suits to establish title
or lend its preventive aid of injunction;6

18. Settled jurisprudence dictates that this Honorable

Court should dissolve the TRO (if extended) it issued in
favor of the petitioner and should not issue a WPI,
considering further that the petitioner utterly failed to
show any clear and positive right which should be
protected. The alleged right of the petitioner on having
an ample time to locate a new passage way and to
facilitate transfer of all utility lines cannot be said to be
clear and unmistakable, because it was informed of the
intention of CCCC to fence its own property long time
even before the actual fencing;

BY WAY OF COUNTERCLAIM

19. Due to the unfounded filing of this suit, Defendant, as

represented by ARCD, was compelled to hire the services
of the undersigned counsel for the amount One Hundred
Thousand Pesos (P100,000.00) and for the reasons
mentioned above, an award for exemplary damages is
fitting under the circumstances.

PRAYER

WHEREFORE, premises considered, it is most respectfully

prayed of this Honorable Court that:

1. If the Temporary Restraining Order issued by the Honorable

Court on 7 February 2017 is extended to Twenty (20) days,
the same must be DISSOLVED;
2. Petitioners prayer for the issuance of a Writ of Preliminary
Injunction be DENIED; and

3. The instant petition be DISMISSED.

OTHER RELIEFS, just and equitable under the premises, are

likewise prayed for.

6 Boncodin v. NECU, G.R No. 162716, 27 September 2006.

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RESPECTFULLY SUBMITTED.

City of MMM, Philippines, February 15, 2017.

CCCCC
Represented by

ABCD
Defendant

Assisted by:
xxxxxx