Quinones v. R W Thompson Company, Inc.
The claimant was represented by Harvey L. Levine, Esq., and Jennifer B. Levine, Esq., Law Offices of Levine & Levine, 754 West Main Street, New Britain, CT 06053.
The respondents were represented by Nicholas C. Varunes, Esq., Varunes & Associates, PC, Five Grand Street, Hartford, CT 06106-1505.
This Petition for Review1 from the October 15, 2012 Order of the Commissioner acting for the First District was heard August 23, 2013 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners Charles F. Senich and Ernie R. Walker.
JOHN A. MASTROPIETRO, CHAIRMAN. The claimant has appealed from a decision by the trial commissioner to take additional evidence in this matter prior to reaching a decision on a pending Motion to Preclude. Upon review, it is this panel’s opinion that this is the sort of interlocutory decision that should not be appealed to the Compensation Review Board. We herein remand this matter to the trial commissioner for further proceedings.
The pertinent facts concerning this appeal are as follows. The claimant filed a Form 30C dated September 7, 2010 and received October 25, 2010 and another Form 30C dated February 4, 2011 and received on February 10, 2011 alleging he sustained an injury while at work on March 16, 2010. A Motion to Preclude was filed by the claimant dated February 9, 2012 and received on February 29, 2012. The respondent’s filed an objection to this Motion on March 9, 2012, asserting that they had paid indemnity benefits and medical treatment for this injury and that a Form 36 regarding this injury had been approved on November 2, 2011. A formal hearing was held on the pending Motion on April 18, 2012 before Commissioner Clifton E. Thompson. At the conclusion of that hearing Commissioner Thompson ordered the litigants to submit briefs and documentary evidence on the matter, with the record closing at a subsequent pro forma formal hearing. April 18, 2012 Transcript, pp. 13-15.
Subsequent to that hearing and prior to rendering a decision on the pending Motion, Commissioner Thompson unexpectedly died on May 18, 2012. As a result of that sad event, counsel for the litigants exchanged correspondence on how to proceed. On May 24, 2012 counsel for both the claimant and the respondent sent letters to the Commission seeking to have a new Commissioner rule on the record of the April 18, 2012 formal hearing. The parties then submitted briefs outlining their positions on the legal issues presented at that hearing. The final brief, a reply brief to the respondent’s reply brief, was filed on July 3, 2012.
The case was transferred to Commissioner Stephen B. Delaney. On August 31, 2012 Commissioner Delaney issued an order to the litigants, sua sponte, setting the matter down for an additional formal hearing on October 1, 2012 “to allow the parties articulate on the record their respective arguments and positions in this claim before a decision is to issue.” Counsel for the claimant filed an objection on September 5, 2012 to the matter being reopened by the commissioner. The hearing before Commissioner Delaney was held on October 1, 2012. At that hearing the commissioner ruled that the precedent in the case of Stevens v. Hartford Accident & Indemnity Co., 29 Conn. App. 378 (1992) empowered him to reopen the hearing for the purpose of recalling a witness to the proceeding. The commissioner stated that he had questions that he wished to present to the claimant. October 1, 2012 Transcript, pp. 12-15.
The claimant filed a Motion for Articulation which was denied by the trial commissioner. He also filed a Motion to Correct which was denied November 2, 2011 noting “a trial de novo was not ordered by the undersigned.” The claimant filed a Petition for Review and Reasons for Appeal seeking to have to this panel overrule Commissioner Delaney’s orders in this matter.
The claimant’s appeal is based on his belief that Commissioner Delaney had no choice but to rule solely on the record that was present before Commissioner Thompson and that Commissioner Delaney had no authority to seek any additional testimony. The claimant cites Gorelick v. Montanaro, 94 Conn. App. 14 (2006) and Pinto v. General Signal Corp., 2277 CRB-5-95-1 (January 22, 1997), dismissed for lack of a final judgment, A.C. 16874 (October 30, 1997) for this proposition. The claimant also argues that the exchange of correspondence between counsel on May 24, 2012 created a binding agreement upon the trial commissioner to rule on the record that existed as of that point. The respondent disputes these arguments, and further argues citing Richardson v. Bic Corporation, 4953 CRB-3-05-6 (September 7, 2006) that this dispute is unripe for appellate consideration at this time.
We are persuaded by the respondents’ argument on ripeness, in part after our review of the holding of Gorelick, supra. While we have not required a “final judgment” from a trial commissioner as a prerequisite to an appeal, see § 31-3012, not all interlocutory rulings are appealable and upon review this ruling falls into the category of decisions that are not appealable.
The present appeal is essentially from a decision on an interlocutory motion upon an interlocutory motion. There is a pending Motion to Preclude before the trial commissioner. The claimant’s objection and subsequent motions are essentially motions seeking to address the trial commissioner’s consideration of the pending, and yet unresolved, underlying Motion to Preclude. Once the present dispute over the evidentiary rulings is addressed, the trial commissioner will still have to rule on the underlying Motion to Preclude. Presumably, the party aggrieved by the ultimate decision on that issue will appeal that decision to the Compensation Review Board at that time. It is possible that appeal may well result in even more proceedings before the trial commissioner before the ultimate issues in this matter are resolved.
As a result, we find this portion of our Richardson opinion applicable to the issues at hand.
This board has given voice to that principle in order to provide guidance to parties inclined to appeal interlocutory rulings. “The efficient and timely resolution of cases is of prime importance given the urgent need for remedial relief that many injured claimants experience. Maintaining the integrity of final judgments is crucial to the stability of our legal system, but this concern should not overshadow the fundamental need for speedy decisionmaking in the workers’ compensation arena.” Bailey, supra. Appeals create delay, and participants in this system should strive to keep in mind the need for deliverance of timely decisions. Unfortunately, this Commission works with limited resources, and it takes time to process cases and appeals. Thus, it helps to expedite decisionmaking if parties refrain from immediately appealing evidentiary rulings and other interlocutory rulings.
We determined that in Richardson, as that matter had already been appealed once to our tribunal previously, the overall agenda of judicial economy was better served by considering the merits of that appeal. We find however, in the present case, where no decision on the merits has yet been reached by the trial commissioner, the circumstances are more akin to the situation in Kuba, supra. In Kuba, the claimant filed a Motion to Preclude testimony from a witness which the trial commissioner denied. The claimant’s claim that he sustained an injury as a result of Lyme Disease was dismissed and he appealed. The respondents argued that the claimant could not raise adverse evidentiary decisions on his appeal. We disagreed.
We disagree with the respondents’ assertion that the claimant should be precluded from raising these evidentiary issues on appeal. Though § 31-301(a) allows either party to appeal within ten days “after entry of an award by the commissioner, after a decision of the commissioner upon a motion or after an order by the commissioner according to the provisions of section 31-299b” (emphasis added), it would be imprudent for a party to delay the progress of an action for many months at a time in order to immediately appeal every one of a commissioner’s interlocutory rulings to the Compensation Review Board before moving forward. In a complicated action that involved numerous contested evidentiary rulings, it could conceivably take the better part of a decade to resolve the claim. Unless the immediate actualization of an interlocutory ruling may result in some form of irreparable harm, such as the disclosure of sensitive and confidential information to opposing counsel; see Vetre v. State/Dept. of Children & Families, 3948 CRB-6-98-12 (Feb. 14, 2000); this board discourages parties from filing appeals before the commissioner has had a chance to rule on the merits of a case. Bailey v. State/Greater Hartford Community College, 3694 CRB-1-97-9 (Jan. 12, 1999); Dixon v. United Illuminating Co., 14 Conn. Workers’ Comp. Rev. Op. 215, 1996 CRB-4-94-3 (Aug. 4, 1995) (Brouillet, C., dissenting). Otherwise, the speedy and efficient resolution of workers’ compensation claims will frequently be impeded, contrary to the design of the Act. Menzies v. Fisher, 165 Conn. 338, 346 (1973).
We note that were the trial commissioner in this matter to grant the claimant’s Motion to Preclude after considering additional evidence, presumably the claimant’s current objections would be mooted and the respondents would be the aggrieved party bringing an appeal. We find that circumstance similar to the situation we described in Bailey v. Stripling Auto Sales, Inc., supra.
The transcript from the March 12, 2002 formal hearing shows that the parties understood that the trial commissioner intended to rule on the Motion to Dismiss and the Motion to Preclude before he could fully consider the merits of this case. Transcript, pp. 41-43. When those motions were denied, the respondents filed this appeal instead of allowing the case to move forward for the consideration of the exhibits that originally had been marked for identification only, and any related testimony. Though this board has the statutory authority to consider this appeal, we note that no irreversible harm would have been occasioned by letting this case go forward on the merits. The respondents’ res judicata defense would have been just as viable following a full adjudication of the case, and might have been rendered moot by a dismissal of the underlying claim.
We cannot identify the irreversible harm that would occur to the claimant were this case to go forward and the trial commissioner rule on the record that he deemed appropriate. The claimant could present for our consideration any and all errors made by the trial commissioner in the underlying proceeding if and when he appealed a final decision on the Motion to Preclude. At that point, once a decision on the merits was reached, we could determine whether the trial commissioner went beyond his general authority pursuant to § 31-298 C.G.S.3 to manage the hearings he was charged with deciding.4 The precedent of Bailey v. Stripling Auto Sales, Inc., supra, suggests that this would be the appropriate manner in which to proceed.
We have reviewed the primary case relied upon by the claimant, Gorelick v. Montanaro, 94 Conn. App. 14 (2006) and find that the holding of that case supports our reasoning herein. In Gorelick, the Appellate Court dealt with the issue of whether it was appropriate to appeal the interlocutory rulings in that case from the trial court to the Appellate Court. Citing precedent in State v. Curcio, 191 Conn. 27 (1983) the Appellate Court found the appeals were unripe for consideration.
An otherwise interlocutory ruling can be immediately appealed in two circumstances: (1) where the order terminates a separate and distinct proceeding; or (2) where the order so concludes the rights of the parties that further proceedings cannot affect them. Id., 31. In the present case, neither prong of the Curcio test is satisfied.
We are of the opinion the present dispute is unripe for appellate adjudication. We therefore remand this case to the trial commissioner to complete his deliberations on the pending Motion to Preclude.
Commissioners Charles F. Senich and Ernie R. Walker concur in this opinion.
Sec. 31-301. Appeals to the Compensation Review Board. Payment of award during pendency of appeal. (a) At any time within twenty days after entry of an award by the commissioner, after a decision of the commissioner upon a motion or after an order by the commissioner according to the provisions of section 31-299b, either party may appeal therefrom to the Compensation Review Board by filing in the office of the commissioner from which the award or the decision on a motion originated an appeal petition and five copies thereof. The commissioner within three days thereafter shall mail the petition and three copies thereof to the chief of the Compensation Review Board and a copy thereof to the adverse party or parties. If a party files a motion subsequent to the finding and award, order or decision, the twenty-day period for filing an appeal of an award or an order by the commissioner shall commence on the date of the decision on such motion.
(b) The appeal shall be heard by the Compensation Review Board as provided in section 31-280b. The Compensation Review Board shall hear the appeal on the record of the hearing before the commissioner, provided, if it is shown to the satisfaction of the board that additional evidence or testimony is material and that there were good reasons for failure to present it in the proceedings before the commissioner, the Compensation Review Board may hear additional evidence or testimony.
(c) Upon the final determination of the appeal by the Compensation Review Board, but no later than one year after the date the appeal petition was filed, the Compensation Review Board shall issue its decision, affirming, modifying or reversing the decision of the commissioner. The decision of the Compensation Review Board shall include its findings, conclusions of law and award.
(d) When any appeal is pending, and it appears to the Compensation Review Board that any part of the award appealed from is not affected by the issues raised by the appeal, the Compensation Review Board may, on motion or of its own motion, render a judgment directing compliance with any portion of the award not affected by the appeal; or if the only issue raised by the appeal is the amount of the average weekly wage for the purpose of determining the amount of compensation, as provided in section 31-310, the commissioner shall, on motion of the claimant, direct the payment of the portion of the compensation payable under his award that is not in dispute, if any, pending final adjudication of the disputed portion thereof. In all appeals in which one of the parties is not represented by counsel, and in which the party taking the appeal does not prosecute the case within a reasonable time from the date of appeal, the Compensation Review Board may, of its own motion, affirm, reverse or modify the award.
(e) When an appeal is taken to the Compensation Review Board, the chief clerk thereof shall notify the commissioner from whose award the appeal was taken, in writing, of any action of the Compensation Review Board thereon and of the final disposition of the appeal, whether by judgment, withdrawal or otherwise, and shall upon the decision of the appeal, furnish the commissioner with a copy of the decision. Whenever any appeal is pending, if it appears to the Compensation Review Board that justice so requires, the Compensation Review Board shall order a certified copy of the evidence for the use of the employer, the employee or both, and the certified copy shall be made a part of the record on the appeal. The procedure in appealing from an award of the commissioner shall be the same as the procedure employed in an appeal from the Superior Court to the Supreme Court, where applicable. The chairman of the Workers’ Compensation Commission shall adopt regulations, in accordance with the provisions of chapter 54, to establish rules, methods of procedure and forms as the chairman deems expedient for the purposes of this chapter.
(f) During the pendency of any appeal of an award made pursuant to this chapter, the claimant shall receive all compensation and medical treatment payable under the terms of the award to the extent the compensation and medical treatment are not being paid by any health insurer or by any insurer or employer who has been ordered, pursuant to the provisions of subsection (a) of this section, to pay a portion of the award. The compensation and medical treatment shall be paid by the employer or its insurer.
4 We do note that had the trial commissioner acted in a sua sponte manner after an appeal had been taken, our precedent states that he would have lacked jurisdiction to have acted. See Spatafore v. Yale University, 2011 CRB-3-94-4 (September 14, 1995).
Once a petition for review is filed with the Compensation Review Board pursuant to § 31-301 C.G.S., the CRB has jurisdiction over the appeal. During the appeal, this board has the power to admit additional evidence if justified. See Admin. Reg. § 31-301-9. Trial commissioners are often requested to make changes to their findings via a Motion to Correct, as was done in this case by the respondent. The granting of a Motion to Correct acts as an amendment of a Finding and Award. See Admin. Reg. § 31-301-4.
There have been instances where this board has dismissed appeals because a trial commissioner has vacated the order or award underlying the appeal. Hutchinson v. C. Cowles & Co., 12 Conn. Workers’ Comp. Rev. Op. 387, 1934 CRB-3-93-12 (Aug. 29, 1994); Discuillo v. Stone & Webster, 12 Conn. Workers’ Comp. Rev. Op. 1, 1366 CRD-2-91-12 (Jan. 4, 1994). In both of those cases, however, a party had requested additional proceedings before the trial commissioner. Also, the circumstances surrounding those cases warranted vacating the underlying decisions.
Here, the trial commissioner appears to have withdrawn his decision as an alternative to ruling on a Motion to Correct, without a request by either party to take such action. We do not think that such an order was permissible. Once the commissioner’s award was appealed, it was not appropriate for him to reconsider the factual findings on his own terms. The only decision facing him with respect to those findings was whether to grant all or part of the Motion to Correct. A sua sponte withdrawal of the Finding and Award in order to hear further evidence was inappropriate, as the trial commissioner no longer had jurisdiction over the determination of the issues appealed. Absent the type of irregularity that would invalidate his or her decision as a whole, a trial commissioner should not attempt to rescind an award once it has been appealed to the CRB. See Hutchinson, supra (trial commissioner disqualified herself after award issued).
5 The Supreme Court restated that general rule concerning whether an interlocutory order is capable of being appealed in Levarge v. General Dynamics Corp., 282 Conn. 386 (2007).
This rule is an application of the more general final judgment principle that an otherwise interlocutory order is appealable [when] (1) it terminates a separate and distinct proceeding, or (2) so concludes the rights of the parties that further proceedings cannot affect them.” (Internal quotation marks omitted.) Doe v. Connecticut Bar Examining Committee, 263 Conn. 39, 49 n.5, 818 A.2d 14 (2003).


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Rudolf, Maher, Widenhouse & Fialko, by M. Gordon Widenhouse, Chapel Hill, for plaintiff-appellee.
Cheshire, Parker, Schneider, Wells & Bryan, by Jonathan McGirt, Raleigh, for defendant-appellant.
Defendant-appellant appeals from an Equitable Distribution Order entered by the trial court. We find this appeal to be interlocutory in nature, and further find that no substantial right of defendant’s will be lost without immediate review. Accordingly, we allow plaintiff’s Motion to Dismiss Interlocutory Appeal, filed 7 June 2000.
factors in plaintiff’s favor outweighed those in defendant’s favor. The trial judge awarded plaintiff sixty percent (60%) of the marital estate; distributed specific property to each party; and ordered the defendant to pay a distributive award of over $24,000 to the plaintiff. The court’s order also states that “the issue of alimony has not yet been heard.” (emphasis added).
Defendant appealed from the equitable distribution order on 30 September 1999. Several months later, on 20 January 2000, the parties signed a consent order regarding child custody. Although a dispute subsequently arose regarding the location where the parties would exchange the child, this was resolved in an Order entered 31 March 2000, leaving no further disputes regarding child custody. On 1 May 2000 the defendant filed a Motion to Amend the Record, and a Petition for Writ of Certiorari. The Motion to Amend sought to insert into the Record a missing transcript page and a copy of the Order resolving the dispute between the parties over where to exchange their child. The Petition asked this Court to entertain the appeal, notwithstanding the fact that the defendant’s appeal is from an order entered prior to resolution of the issues of custody, child support, or alimony.
On 7 June 2000, plaintiff filed a Motion to Dismiss Interlocutory Appeal. Plaintiff’s Motion sought dismissal of defendant’s appeal on the ground that it had been filed before a final resolution of all issues in the case. On 8 June 2000, plaintiff notified defendant of her intention to seek a 31 July 2000 hearing on the issue of alimony. On 31 July 2000, plaintiff filed a Motion to Amend the Record, seeking to add a Cross Assignment of Error and several documents to the Record.
On 28 February 2001, this Court issued orders denying defendant’s Petition for Writ of Certiorari, and allowing plaintiff’s Motion to Amend the Record. We have allowed defendant’s Motion to Amend the Record. Upon review of the record, briefs of the parties and applicable law, this Court concludes that defendant has appealed prematurely, from an interlocutory order that is not immediately appealable. Accordingly, we allow plaintiff’s Motion to Dismiss Interlocutory Appeal.
A final judgment is one which disposes of the cause as to all the parties, leaving nothing to be judicially determined between them in the trial court…. An interlocutory order is one made during the pendency of an action, which does not dispose of the case, but leaves it for further action by the trial court in order to settle and determine the entire controversy.
Id. at 361-62, 57 S.E.2d at 381 (citations omitted). A final judgment is always appealable. However, an interlocutory order is immediately appealable only under two circumstances. First, “if the order or judgment is final as to some but not all of the claims or parties, and the trial court certifies the case for appeal pursuant to N.C. Gen.Stat. § 1A-1, Rule 54(b), an immediate appeal will lie.” N.C. Dept. of Transportation v. Page, 119 N.C.App. 730, 734, 460 S.E.2d 332, 334 (1995) (citations omitted). Under Rule 54(b), the trial judge must certify that there is no just reason for delay. Since there was no certification in the instant case, this avenue of interlocutory appeal is closed to defendant.
dispose of the case before an appeal can be heard.” Bailey, 301 N.C. at 209, 270 S.E.2d at 434. (citations omitted). “`Appellate procedure is designed to eliminate the unnecessary delay and expense of repeated fragmentary appeals, and to present the whole case for determination in a single appeal from the final judgment.'” Hunter v. Hunter, 126 N.C.App. 705, 708, 486 S.E.2d 244, 245-46 (1997) (quoting Raleigh v. Edwards, 234 N.C. 528, 529, 67 S.E.2d 669, 671 (1951)). An appellant who objects to an interlocutory order should allow the case to proceed, and then bring the issue before the Court as part of an appeal from the final judgment. Yang v. Three Springs, Inc., ___ N.C.App. ___, 542 S.E.2d 666 (2001).
In the instant case, defendant appeals from an equitable distribution order that explicitly left open the related issue of alimony. The parties do not seriously dispute that this was an interlocutory order; even defendant “concedes that, in the strictly formal sense, Appellee has a `pending’ claim for alimony.” The issue before this Court is whether an immediate appeal lies from this interlocutory order.
Immediate appeal from an interlocutory order depends upon a finding by this Court that delay of the appeal will jeopardize a substantial right of appellant’s, causing an injury that might be averted if the appeal were allowed. A substantial right is “one which will clearly be lost or irremediably adversely affected if the order is not reviewable before final judgment.” Turner v. Norfolk S. Corp., 137 N.C.App. 138, 142, 526 S.E.2d 666, 670 (2000), (quoting Blackwelder v. Dept. of Human Resources, 60 N.C.App. 331, 335, 299 S.E.2d 777, 780 (1983)), (substantial right not affected by order granting summary judgment on contract claim but not on tort claim).
Whether an interlocutory appeal affects a substantial right is determined on a case by case basis. McCallum v. North Carolina Cooperative Extension Service of N.C. State University, ___ N.C.App. ___, 542 S.E.2d 227 (2001). Our courts generally have taken a restrictive view of the substantial right exception. Blackwelder, 60 N.C.App. 331, 299 S.E.2d 777 (1983).
Interlocutory appeals that challenge only the financial repercussions of a separation or divorce generally have not been held to affect a substantial right. See, e.g., Stafford v. Stafford, 133 N.C.App. 163, 515 S.E.2d 43 (1999) (parties seek immediate review, prior to equitable distribution trial, of date of separation used by trial court in its entry of order granting absolute divorce; held not to affect substantial right where date relevant only to equitable distribution claim); Rowe v. Rowe, 131 N.C.App. 409, 507 S.E.2d 317 (1998) (orders awarding postseparation support not immediately appealable); Hunter v. Hunter, 126 N.C.App. 705, 486 S.E.2d 244 (1997) (interim equitable distribution order not immediately appealable); Dixon v. Dixon, 62 N.C.App. 744, 303 S.E.2d 606 (1983) (order requiring one spouse to return property to marital home pending resolution of equitable distribution and divorce actions not immediately appealable); Stephenson v. Stephenson, 55 N.C.App. 250, 285 S.E.2d 281 (1981) (pendente lite awards not immediately appealable).
[T]he matter could have been heard on its merits and a final order entered by the District Court … months before the appeal reached this Court for disposition. There is an inescapable inference drawn… that the appeal … is pursued for the purpose of delay rather than to accelerate determination of the parties’ rights. The avoidance of deprivation due to delay is one of the purposes for the rule that interlocutory orders are not immediately appealable.
personal right, such as the right to trial by jury.
Defendant asserts in his Response to Appellee’s Motion to Dismiss Interlocutory Appeal that plaintiff has remarried, rendering her claim for alimony “quixotic, if not utterly futile.” However, plaintiff’s alleged remarriage is not properly before this Court; nor are any other events that purportedly have occurred since the entry of the equitable distribution order.
Considerations of judicial economy militate towards deferring our consideration of defendant’s appeal until a final judgment has been entered in this case. Defendant has appealed from an interlocutory order, which does not affect a substantial right. We find that there is no right to immediate appeal from this Order of Equitable Distribution. Therefore, we grant plaintiff’s Motion to Dismiss Interlocutory Appeal.
WALKER and SMITH, Judges, concur.

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O'Neil v. Northern Colorado Irrigation Co.
Pennsylvania R. Co. v. Jacoby & Co.
Pennsylvania R. Co. v. Sonman Shaft Coal Co.
Great Northern Ry. Co. v. Capital Trust Co.
United States v. Merchants' &c. Assn.
United States v. Northern Pac. Ry. Co.
Goshen Mfg. Co. v. Myers Mfg. Co.
Louisville & Nashville R. Co. v. Ohio Valley Tie Co.
Pennsylvania R. Co. v. Stineman Coal Mining Co.

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ELIGIO C. DAJAO and LUZVIMINDA DIONISIO DAJAO, Petitioners, v. COURT OF APPEALS, MUNICIPAL GOVERNMENT OF TIGDOC, represented by the Municipal Mayor, Respondents.
REMEDIAL LAW; SPECIAL CIVIL ACTIONS; EMINENT DOMAIN; BASIS FOR PAYMENT OF JUST COMPENSATION; MARKET VALUE OF LAND WHEN EXPROPRIATION CASE WAS FILED. — The trial court did not err in holding that the just compensation should be P5,298, which was the market value of the land in 1977, when the expropriation case was filed, as shown in Tax Declaration No. 45366 (Exh. E). The market value of the land was increased to P11,626 but it was effective in 1978 (Exh. 2 and 2-C) on the assumption that the land was residential. At that time, the assessed value in the sum of P2,120 had already been deposited in court. The lower court said that Dajao acted in bad faith in securing the increased assessment because the land was agricultural. It noted that the area "is devoid of residential houses." The trial court simply applied to this case Section 92 of the Real Property Tax Code, Presidential Decree No. 464, as amended by Presidential Decree No. 794, which allows the owner to make his own valuation of his property and which is designed to stop the "baneful and one-sided practice abetted by the collusive acquiescence of government" employees of underdeclaring properties for the purpose of taxation but "ballooning the price thereof when the same properties are to acquired for public purposes" (National Housing Authority v. Reyes, L-49439, June 29, 1983,123 SCRA 245,251). With respect to the interest, the respondent municipality is liable to pay interest at the legal rate from the time it took possession of the land up to the time the sum of P3,178 is paid (Republic v. Yaptinchay, 108 Phil. 1046, 1053; Republic v. Lara, 96 Phil. 170). The interest on the deposit of P2,120 in the Philippine National Bank should be paid to the Dajao spouses. As the land involved is unregistered land, the trial court did not err in requiring the Dajao spouses to execute the proper deed of conveyance .
This case is about an expropriation by the municipality of Tudela, Misamis Occidental of 35,400 square meters of land belonging to the Dajao spouses. The land, which used to be forestal land, is located near the national road.
Sometime in 1969 the officials of Barrio Tigdoc, Tudela constructed a Marcos-type school in that land for the use of pupils in the primary course (See Ragol v. Court of Appeals, L-36561). The landowner, Eligio C. Dajao, prevented the occupation of the school from the last week of December, 1975 to the first week of January, 1976. The municipal government of Tudela had to file the instant eminent domain proceeding on January 24, 1977.
After hearing, the trial court ordered the municipal government to pay the Dajao spouses P3,178 for the condemnation of the land, allowed the spouses to withdraw the deposit of P2,120 and required them to execute the necessary deed of conveyance. The spouses appealed to the Appellate Court which affirmed the trial court’s decision. The Dajao spouses appealed to this Court.
We hold that the contention is untenable. The trial court did not err in holding that the just compensation should be P5,298, which was the market value of the land in 1977, when the expropriation case was filed, as shown in Tax Declaration No. 45366 (Exh. E).
The trial court simply applied to this case section 92 which allows the owner to make his own valuation of his property and which is designed to stop the "baneful and one-sided practice abetted by the collusive acquiescence of government" employees of underdeclaring properties for the purpose of taxation but "ballooning the price thereof when the same properties are to be acquired for public purposes" (National Housing Authority v. Reyes, L-49439, June 29, 1983, 123 SCRA 245, 251).
With respect to the interest, the respondent municipality is liable to pay interest at the legal rate from the time it took possession of the land up to the time the sum of P3,178 is paid (Republic v. Yaptinchay, 108 Phil. 1046, 1053; Republic v. Lara, 96 Phil. 170). The interest on the deposit of P2,120 in the Philippine National Bank should be paid to the Dajao spouses.
As the land involved herein is unregistered land, the trial court did not err in requiring the Dajao spouses to execute the proper deed of conveyance. As to registered land, see Presidential Decree No. 1529.
WHEREFORE, the judgment of the Court of Appeals is affirmed. No costs.
Concepcion, Jr., Abad Santos, Escolin and Cuevas, JJ., concur.
Makasiar, J., I reserve my vote.
"SECTION 1.	In determining just compensation for private property acquired through eminent domain proceedings, the compensation to be paid shall not exceed the valued declared by the owner or administrator or anyone having legal interest in the property or determined by the assessor, pursuant to the Real Property Tax Code, whichever value is lower, prior to the recommendation or decision of the appropriate Government office to acquire the property."

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Carl W. Northrop argued the cause for the petitioners and intervenors. Timothy E. Welch, Kenneth E. Hardman, John D. Pellegrin, Frederick M. Joyce, Kenneth D. Patrich and Robert L. Hoggarth were on brief. Ray M. Senkowski, Chris- tine M. Crowe and David A. Gross entered appearances.
I. Klein, Assistant Attorney General, United States Depart- ment of Justice, and Robert B. Nicholson and Andrea Lim- mer, Attorneys, United States Department of Justice, were on brief. Daniel M. Armstrong, Associate General Counsel, and Gregory M. Christopher, Counsel, Federal Communica- tions Commission, entered appearances.
Before: Williams, Sentelle and Henderson, Circuit Judges.
__________ 1 Common carrier paging licensees "gain[ ] the exclusive use of the licensed frequency within their protected service area." PSWF Corp. v. FCC, 108 F.3d 354, 355 (D.C. Cir. 1997). Private carrier paging licensees, on the other hand, "ha[ve] to share their allotted frequency with other such licensees operating in the same geo- graphic area." Id.
2 Applications are considered "mutually exclusive" if only one can be granted because they seek the same license or different licenses that would interfere with each other. See Lakeshore Broadcasting, Inc. v. FCC, 199 F.3d 468, 470 (D.C. Cir. 1999) (citing Ashbacker Radio Corp. v. FCC, 326 U.S. 327, 333 (1945)).
licensees and that the algorithm the FCC used to identify pending mutually exclusive applications violates the Paper- work Reduction Act of 1995 (PRA), 44 U.S.C. ss 3501 et seq. For the reasons set out below we reject each of these arguments and deny the petitions for review.
Before 1996 the FCC allocated licenses for common carrier paging and exclusive private carrier paging service spectrum under the traditional site-specific licensing scheme which required a separate license for each paging transmitter site. Each license application proposed a transmission frequency and set out technical information on the proposed station, including its potential for electrical interference with adjacent stations. See 47 C.F.R. s 22.529 (1996); id. s 22.559. Once an applicant filed, the FCC reviewed each site-specific appli- cation preliminarily for formal compliance and issued public notice of acceptance of filing. See id. s 22.120. Generally, if an applicant's proposed service would overlap and interfere with an incumbent licensee's transmission, the application was denied. See id. s 22.537(a). When mutually exclusive site- specific applications were filed, a single applicant was selected by lottery. See id. s 22.131(c)(1).
to be awarded." Second R&O, 12 F.C.C.R. at 2794. A successful bidder faces "automatic cancellation" of the license if it does not either (1) "provide coverage to one-third of the population within three years of the license grant, and to two- thirds of the population within five years of the license grant" or (2) "provide substantial service to the geographic license area within five years of license grant." Id. at 2765.
In contemplation of the new geographic system, the FCC imposed a filing freeze as of February 8, 1996. On February 19, 1997 the Commission released its Second Report and Order outlining the auction procedures for the new geograph- ic licenses and authorizing the Wireless Telecommunications Bureau to dismiss all pending exclusive paging applications and to either grant or dismiss all pending non-mutually exclusive paging applications. On June 24, 1999 the FCC issued its Third Report and Order affirming the geographic licensing scheme but somewhat modifying its procedures. On August 12, 1999 the FCC issued a public notice announcing the relevant auction procedures for the geographic paging licenses. See Auction of 929 MHz Paging Serv. Spectrum, Public Notice (1999). Applicants for the licenses filed their Short Forms on January 20, 2000 and deposited their upfront payments on February 7, 2000. On February 24, 2000 the FCC conducted the auction.
Six petitions for review of the FCC's rulemaking have been filed at various points in the proceedings and have been consolidated for consideration here.
and dismissed license applicants (applicant petitioners),4 chal- lenge the FCC's new geographic licensing scheme on three grounds. We address--and reject--each ground in turn.
__________ these petitioners or any subgroup of them will be identified as "licensee petitioners."
4 These petitioners, whose applications, filed between November 15, 1995 and February 8, 1996, were dismissed without action because the FCC considered them mutually exclusive, are Robert L. Wagner, Melvia M. Woods, Robert Horn, John Piskor, Mo- hammed Siddiqui and Lenard Travis.
5 The intervenors include AirTouch Paging, Arch Communications Group, Inc., Metrocall, Inc., Nationwide Paging, Inc. and Power- Page, Inc.
dard set forth in Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842-843, 104 S. Ct. 2778, 81 L. Ed. 2d 694 (1984), by which the court considers 'whether Congress has directly spoken to the precise question at issue,' id. at 842, and if it has not, 'whether the agency's answer is based on a permissible construction of the statute.' Id. at 843." Community Television, Inc. v. FCC, Nos. 98-1106 et al., slip op. at 5 (D.C. Cir. 2000). We conclude that, while the cited statutory language is ambiguous, the Commission has reasonably construed it to authorize the challenged auctions.
The petitioners first argue modified licenses are not "ini- tial" licenses for which section 309(j)(1) authorizes competitive bidding. In order for a license to be considered initial under section 309(j)(1), "a newly issued license must differ in some significant way from the license it displaces." Fresno Mobile Radio, Inc. v. FCC, 165 F.3d 965, 970 (D.C. Cir. 1999). In Fresno we noted that "nothing in the text of [section 309(j)] forecloses [the FCC] from considering a license 'initial' if it is the first awarded for a particular frequency under a new licensing scheme, that is, one involving a different set of rights and obligations for the licensee." Id. The FCC reasonably treated the incumbent licensees' applications for modification under the new geographic system as applications for "initial" licenses under such a "new licensing scheme." The petitioners note that the two licensing schemes provide the same paging service on the same frequencies, basically provide fill-in sites and maintain the same licensee buildout requirements. Nevertheless, they themselves acknowledge, as they must, that the geographic license scheme has wrought 34fundamental alterations to the paging industry's market structure and licensing schemes.34 Petitioners' Br. 30. Under the geographic scheme non-incumbents can compete for the available spectrum, however much remains, on equal footing with incumbents and successful applicants have far greater freedom in selecting transmitter locations; yet at the same time new licensees assume much more responsibility for researching site locations to protect incumbents from interference. Given the new scheme's 34fundamental34 alterations, we hold the FCC reasonably treated modification applications by incumbents as 34initial34 applications within the meaning of section 309(j)(1).
__________ 6 The petitioners also challenge the "substantial service" standard as too vague to permit the FCC to provide notice to licensees of license termination, as required under 5 U.S.C. s 558(c). We find adequate notice is provided, however, in the review procedure the FCC requires before automatic termination can occur. See Brief of Respondents at 28.
F.C.C.R. at 2767.7 Geographic licensees, by contrast, enjoy no similar protection from interference. Because of this distinc- tion, we conclude the FCC reasonably accorded the two groups different treatment.
__________ 7 In addition, geographic licensees are required to provide con- struction information upon request. See 47 C.F.R. s 22.529(c).
8 PRA section 3507(a) provides that "[a]n agency shall not con- duct or sponsor the collection of information unless in advance of the adoption or revision of the collection of information ... the agency has" submitted the proposed collection of information to the OMB Director, "the [OMB] Director has approved the proposed collection of information ...; and ... the agency has obtained from the [OMB] Director a control number to be displayed upon the collection of information." 44 U.S.C. s 3507(a).
9 The FCC contests our jurisdiction over the claims of those applicant petitioners who did not file a petition for reconsideration of the FCC's dismissal of their applications. See 47 U.S.C. s 155(c)(7). The FCC concedes, however, that the court has juris- diction over at least one of the petitions. See Brief of Respondents at 32. The PRA issue is therefore squarely before the court.
__________ 10 The petitioners' alternative argument that the algorithm vio- lates the Administrative Procedure Act, 5 U.S.C. s 553, because promulgated without public notice and comment is waived because the argument was raised for the first time in the petitioners' reply brief. See Grant v. United States Air Force, 197 F.3d 539, 543 (D.C. Cir. 1999) ("[A]n argument first made in a reply brief comes too late.") (citing Fraternal Order of Police v. United States, 173 F.3d 898, 902-03 (D.C. Cir. 1999)).


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The appellant seeks to review a judgment of the court of claims denying his right to be paid the salary pertaining to [189 U.S. 311, 312] the office of a general appraiser of merchandise and accruing between May 15 and November 1, 1899. The court refused to decree payment of the claim on the ground that he was not one of the appraisers during the time for which he demanded such salary.
You are hereby removed from the office of general appraiser of merchandise, to take effect upon the appointment and qualification of your successor.
The appellant never resigned his office nor acquiesced in any attempted removal therefrom, and he was never notified or informed of any charges made against him, either of inefficiency, neglect of duty, or malfeasance in office, and he knows of no cause for his removal from the office having been ascertained or assigned by the President.
On May 12, 1899, an appointment was made during the recess of the Senate to fill the vacancy caused by the removal of the petitioner from his office, and such appointment was to be [189 U.S. 311, 313] in effect not longer than to the end of the next session of the Senate of the United States. The appointee under that commission took the oath of office and entered upon the duties thereof on May 12, 1899, and has received pay as such officer, beginning on May 19, 1899, up to the present time. On December 15, 1899, he was nominated to the Senate and the nomination to that office was confirmed on January 17, 1900, and he was commissioned by the President under the above confirmation on January 22, 1900, and took the oath of office under that appointment on January 26, 1900, and since that time has remained in the office to which he was so appointed.
Upon these findings the court of claims decided as a conclusion of law that the appellant was not entitled to recover, and his petition was therefore dismissed.
Mr. Edwin B. Smith and Messrs. Smith & Barker for appellant.
Assistant Attorney General Pradt for appellee.
'Sec. 12. That there shall be appointed by the President, by and with the advice and consent of the Senate, nine general appraisers of merchandise, each of whom shall receive a salary of seven thousand dollars a year. Not more than five of such general appraisers shall be appointed from the same political party. They shall not be engaged in any other business, avocation, or employment, and may be removed from office at any time by the President for inefficiency, neglect of duty, or malfeasance in office. . . .
'Various state courts have also held that, where an officer may be removed for certain causes, he is entitled to notice and a hearing. See Dullam v. Willson, 53 Mich. 392, 401, 51 Am. Rep. 128, 19 N. W. 112; Page v. Hardin, 8 B. Mon. 668, 672; Willard's Appeal, 4 R. I. 597; Com. ex rel. Bowman v. Slifer, 25 Pa. 23, 28, 64 Am. Dec. 680; State ex rel. Atty. Gen. v. Hawkins, 44 Ohio St. 98, 114, 5 N. E. 228; Biggs v. McBride, 17 Or. 640, 650, 5 L. R. A. 115, 21 Pac. 878; Ham v. Boston Bd. of Police, 142 Mass. 90, 7 N. E. 540.
We assume, for the purposes of this case only, that Congress could attach such conditions to the removal of an officer appointed under this statute as to it might seem proper; and, therefore, that it could provide that the officer should only be removed for the causes stated, and for no other, and after notice and an opportunity for a hearing. Has Congress, by the 12th section of the above act, so provided?
It cannot now be doubted that, in the absence of constitu- [189 U.S. 311, 315] tional or statutory provision, the President can, by virtue of his general power of appointment, remove an officer, even though appointed by and with the advice and consent of the Senate. Ex parte Hennen, 13 Pet. 230; Parsons v. United States, 167 U.S. 324 , 42 L. ed. 185, 17 Sup. Ct. Rep. 880, and cases cited. To take away this power of removal in relation to an inferior office created by statute, although that statute provided for an appointment thereto by the President and confirmation by the Senate, would require very clear and explicit language. It should not be held to be taken away by mere inference or implication. Congress has regarded the office as of sufficient importance to make it proper to fill it by an appointment to be made by the President and confirmed by the Senate. It has thereby classed it as appropriately coming under the direct supervision of the President, and to be administered by officers appointed by him (and confirmed by the Senate) with reference to his constitutional responsibility to see that the laws are faithfully executed. Art. 2, 3.
In Blake v. United States, 103 U.S. 227 , 26 L. ed. 462, there were two constructions that might have been placed upon the act there under consideration, determining the tenure by which army and naval officers held their commissions in time of peace, and that construction was placed upon the 5th section of the act of July 13, 1866, chapter 176 (14 Stat. at L. 92), which left with the President his power to remove an officer of the Army or Navy, by the appointment of his successor, by and with the advice and consent of the Senate. Although the question was regarded as not free from difficulty, it was held that there was no intention on the part of Congress to deny or restrict the power of the President, with the consent of the Senate, to displace army and naval officers in time of peace by the appointment of others in their places. This indicates the tendency of the court to require explicit language to that effect before holding the power of the President to have been taken away by an act of Congress.
The appellant contends that, because the statute specified certain causes for which the officer might be removed, it thereby impliedly excluded and denied the right to remove for any [189 U.S. 311, 316] other cause, and that the President was therefore by the statute prohibited from any removal excepting for the causes, or some of them, therein defined. The maxim, Expressio unius est exclusio alterius, is used as an illustration of the principle upon which the contention is founded. We are of opinion that, as thus used, the maxim does not justify the contention of the appellant. We regard it as inapplicable to the facts herein. The right of removal would exist if the statute had not contained a word upon the subject. It does not exist by virtue of the grant, but it inheres in the right to appoint, unless limited by constitution or statute. It requires plain language to take it away. Did Congress, by the use of language providing for removal for certain causes, thereby provide that the right could only be exercised in the specified causes? If so, see what a difference in the tenure of office is effected as to this office, from that existing generally in this country. The tenure of the judicial officers of the United States is provided for by the Constitution; but, with that exception, no civil officer has ever held office by a life tenure since the foundation of the government. Even judges of the territorial courts may be removed by the President. McAllister v. United States, 141 U.S. 174 , 35 L. ed. 693, 11 Sup. Ct. Rep. 949. To construe the statute as contended for by appellant is to give an appraiser of merchandise the right to hold that office during his life, or until he shall be found guilty of some act specified in the statute. If this be true, a complete revolution in the general tenure of office is effected, by implication, with regard to this particular office. We think it quite inadmissible to attribute an intention on the part of Congress to make such an extraordinary change in the usual rule governing the tenure of office, and one which is to be applied to this particular office only, without stating such intention in plain and explicit language, instead of leaving it to be implied from doubtful inferences. The rule which is expressed in the maxim is a very proper one and founded upon justifiable reasoning in many instances, but should not be accorded controlling weight when to do so would involve the alteration of the universal practice of the government for over a century, and the consequent curtailment of the powers of the Executive in such an unusual manner. [189 U.S. 311, 317] We can see no reason for such action by Congress with reference to this office or the duties connected with it.
The appellant has cited some cases in the state courts, where, under the peculiar circumstances therein set forth, and with regard to the particular provisions of the statutes, it has been held that the power to remove is restricted to the causes stated in such statutes. We do not regard them as applicable to a case like this.
In making removals from office it must be assumed that the President acts with reference to his constitutional duty to take care that the laws are faithfully executed, and we think it would be a mistaken view to hold that the mere specification in the statute of some causes for removal thereby excluded the right of the President to remove for any other reason which he, acting with a due sense of his official responsibility, should think sufficient.
By the 4th section of article 2 of the Constitution it is provided that all civil officers shall be removed from office on impeachment for, and conviction of, treason, bribery, or other high crimes and misdemeanors. No one has ever supposed that the effect of this section was to prevent their removal for other causes deemed sufficient by the President. No such inference could be reasonably drawn from such language.
We are not unmindful of the force of the contention that, if the power of removal is not limited to the causes specified in the statute, that then those words providing for a removal for inefficiency, neglect of duty, or malfeasance in office fulfil no function, because without them the President has unlimited power of removal, and with them he still has the same power.
It may be said, however, that there is some use for the provision for removal for the causes named in the statute. A removal for any of those causes can only be made after notice and an opportunity to defend; and therefore, if a removal is made without such notice, there is a conclusive presumption that the officer was not removed for any of those causes, and his removal cannot be regarded as the least imputation on his character for integrity or capacity. Other causes for removal may, however, exist, and be demanded by the interests of the [189 U.S. 311, 318] service, in order that the office may be better conducted, although the officer may not be proved guilty of conduct coming within the statute as a cause for removal. It is true that, under this construction, it is possible that officers may be removed for causes unconnected with the proper administration of the office. That is the case with most of the other officers in the government. The only restraint in cases such as this must consist in the responsibility of the President, under his oath of office, to so act as shall be for the general benefit and welfare.
It may be, perhaps, that the suggestion above indicated, of the purpose of the statute as evidenced by this language is not entirely satisfactory as a reason for its employment. We by no means overlook the objections to it. But we are called upon to place a meaning upon language which, as used in this section of the statute, gives rise to doubts as to what its true meaning is. We are asked not alone to interpret the language actually used, but to infer or imply therefrom a further meaning as to its effect, which does not necessarily flow from the language itself, and, if adopted, results in the creation of a tenure of this particular office, not attached to a single other civil office in the government, with the exception of judges of the courts of the United States. We cannot bring ourselves to the belief that Congress ever intended this result while omitting to use language which would put that intention beyond doubt. But we are not shut up to the necessity of finding some other and more plausible reason for the use of this language, or else to adopt the meaning contended for by the appellant. The right of removal, as we have already remarked, would exist as inherent in the power of appointment unless taken away in plain and unambiguous language. This has not been done, and although language has been used from which we might speculate or guess that possibly Congress did intend the meaning contended for by appellant, yet it has not in fact expressed that meaning in words plain enough to call upon the courts to determine that such intention existed.
The claim made by the appellant, it will be seen, is for salary accruing prior to the appointment and confirmation of his successor by the President and Senate; but holding, as we do, that [189 U.S. 311, 319] the President had the power to remove on other grounds than those mentioned in the act, he exercised that power by appointing the appellant's successor for the time which elapsed between such appointment and his reappointment after the meeting of the Senate and his confirmation by that body.
We are of opinion that the judgment of the Court of Claims should be affirmed.

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(1) The plaintiff has a strong case for trial. That is, it shall be of a higher standard than a prima facie case that is normally required for a prohibitory injunction.
(2) It is necessary to prevent irreparable or serious injury which normally cannot be compensated in terms of money.
(3) The balance of convenience is in favour of the one seeking such relief.
L.M. Sharma and V. Ramaswami, JJ.
1. This appeal arises out of notice of motion taken by the plaintiff in Civil Suit No. 2987 of 1987 on the file of the Bombay City Civil Court at Bombay for interim injunction pending the suit restraining defendants i to 3 from parting with possession and defendants 4 and 5 from entering into or taking possession and or remaining in possession or enjoyment of the suit property, namely, Dorab Villa, 29, Perry Cross Road, Bandra, Bombay, or any part or portion thereof. The appellant is the plaintiff and defendants 1 to 5 are respondents 1 to 5.
2. The appellant is the owner of an undivided half share in the suit property. The suit property was purchased originally under a deed dated 12th January, 1934 by Cawasji Dorabji Warden, Banubai Warden and the appellant as joint owners. Cawasji Dorabji Warden and Banubai are respectively the father and mother of the appellant. It appears that the super-structure on the land was constructed subsequent to the purchase. At the time when the property was purchased the appellant was a minor. By a registered deed of declaration that the appellant made a declaration that the appellant has an undivided share in the said piece of land and the building erected thereon as joint tenants with the declarants, and that in the event of the appellant's surviving the declarants, he shall by virtue of the said joint tenancy and his survival becomes solely and beneficially entitled to the said piece of land and the building thereon. However, this deed reserved a right to either or both the declarants and the appellant from severing the joint tenancy at any time. On the death of Banubai on 9th June, 1946 the appellant and his father as surviving joint tenants came to own the entire property. Under an agreement dated 23rd of August, 1951 the appellant and his father, who were then the joint tenants of the said property, agreed to hold the same as tenants in common, each having an equal undivided share therein so that each can dispose of his undivided share in the property and each share become a separate stock of descent. On 16th April, 1952 the appellant's father transferred his undivided half share in the suit property in favour of his another son by name Sohrab Warden in consideration of the said Sohrab releasing in favour of his father his undivided share in some other property described in the second schedule to that document. Thus the appellant and his brother Sohrab came to hold an equal undivided one half share each, as tenants in common in respect of the said property.
3. Sohrab died intestate on 12th October, 1976 leaving behind him his widow the first respondent and his two minor sons the second and third respondents in this appeal. Respondents 1 to 3 sold their undivided one half share in the said property to the fourth respondent and his wife under a sale deed dated 16th April, 1987. On the 18th April, 1987 praying for a decree directing respondents 1,2 and 3 from parting with possession of the said property or any part thereof and/or inducting any third party including respondent 4 into the said property or any p part or portion thereof, and for further directions against respondents 4 and 5 from entering into or taking possession and/or remaining in possession or enjoyment of the suit property from defendants 1, 2 and 3 or otherwise. The fifth respondent was impleaded on the assumption that he and the fourth respondent jointly purchased the property but it is now accepted that he is not one of the purchasers and the property was purchased by the fourth respondent and his wife. Pending the suit the appellant prayed for an interim injunction restraining the respondents 1 to 3 from parting with possession of the said property or any part thereof and/or inducting the fourth respondent into the suit property or any part or portion thereof and a similar injunction restraining the fourth respondent from entering into or taking possession and/or remaining in possession or enjoyment of the suit property or part thereof.
5. In the counter-affidavit filed by the fourth respondent and the first respondent on behalf of herself and two minor sons it was contended that though the appellant and respondents 1, 2 and 3 were owning the property in equal moity they were holding it in their individual capacity and not as members of joint family and that the suit property is not joint family property or property belonging to an undivided family. The further case of the defendant was that since 1968 when Sohrab got married the appellant and his family had been in exclusive occupation of the upper floor of the Bungalow and a garage while the entire ground floor of the building of the said property and another garage was in the exclusive use and possession of Sohrab and his family and that the compound, staircase and the terrace were in joint possession. They were also having separate mess, separate electricity and water meters and that they were paying proportionate taxes. After the death of the said Sohrab, respondents l to 3 continued to stay and occupy exclusively the said ground floor as well as the garage till the said one half portion of the property was sold and conveyed absolutely to the fourth respondent and his wife. In the circumstances though the property was held as tenants in common, there had already been a partition as to the user of the property. The fourth respondent had taken possession of that portion of the property which was in occupation of respondents 1 to 3 in pursuance of the sale deed. The further contention was that it is not the appellant who would suffer irreparable loss and peat prejudice if the function is granted but it is the respondents who would suffer the loss and prejudice and that the balance of convenience is not in favour of the appellant.
6. The trial court found that the suit property is dwelling house belonging to an undivided family, that there was no partition of the same by metes and bounds, at any time, that the plaintiff and his father at the material time were undivided qua the entire suit property, that though the family of the appellant and the family of his brother Sohrab may be divided for food and worship they were not divided qua the suit property, that so far as the suit property is concerned the appellant and his family and the family of respondents 1, 2 and 3 were joint and undivided and that the case would fall within the scope of the second paragraph of Section 44 of the Transfer of Property Act and that, therefore, respondent 4 and his wife as strangers were not entitled to joint possession of the said family dwelling house.
7. Since the defendant had claimed that he already entered into possession interim mandatory injunction was granted to the effect that the fourth respondent, his servants and his agents are restrained "from remaining in possession or enjoyment of the suit property" or any part or portion thereof. However, the learned Judge ordered that this injunction order would not prevent the fourth respondent to occasionally enter the suit property to enquire that on one else other than the plaintiff and his family members is entering into possession of the portion of the ground floor and one garage which he has purchased.
8. On appeal the High Court was of the view that prima facie the facts indicate that throughout the parties have lived separately, that there appear to have been severance in status and it is not possible to give a finding that there has been no partition between the parties, that the matter requires evidence on either side as to what extent the ground floor could have ever been considered as family dwelling house that granting of interim mandatory injunction will have the effect of virtually deciding the suit without a trial and that the plaintiff q has not made out a prima facie case that the plaintiff would suffer irreparable damage, if any injunction is not granted or that the balance of convenience is in his favour. In that view the learned Single Judge allowed the appeal and set aside the order granting the injunction hut directed that during the pendency of the suit the fourth respondent and his wife shall not make any permanent alterations in the suit premises nor shall they induct any third party, or create any third party interest over the suit property.
9. Sale deed in favour of the fourth respondent recites that the possession of that portion of the property which was the subject matter of the sale had been handed over to the purchaser and that purchaser can continue to be in possession without any let or hindrance by the vendees. At the time of the Commissioner's inspection immediately after filing of the suit except that there were some of the items belonging to respondents 1 to 3, it was found that the fourth respondent had taken possession. That was the finding of the trial court and it was on that basis the injunction in a mandatory form was granted. In fact, in this Court also the learned Counsel appearing for the parties proceeded on the basis that the purchaser was inducted in the possession of the disputed portion of the house even by the time the Commissioner visited the place. We, therefore, hold that the purchasers have occupied the disputed portion and the question, therefore, for consideration is whether the appellant is entitled to the injunction in a mandatory form directing the fourth respondent-purchaser to vacate the premises.
10. The trial court gave an interim mandatory injunction directing the fourth respondent not to continue in possession. There could be no doubt that the courts can grant such interlocutory mandatory injunction in certain special circumstances. It would be very useful to refer to some of the English cases which have given some guidelines in granting such injunctions.
(iii) On motion, as contrasted with the trial, the court was far more reluctant to grant a mandatory injunction; in a normal case the court must, inter alia, feel a high degree of assurance that at the trial it will appear that the injunction was rightly granted; and this was a higher standard than was required for a prohibitory injunction.
Although the failure of a plaintiff to show that he had a reasonable prospect of obtaining a permanent injunction at the trial was a factor which would normally weigh heavily against the grant of an interlocutory injunction, it was not a factor which, as a matter of law, precluded its grant;.
But I think it is important in this area to distinguish between fundamental principles and what are sometimes described as 'guidelines', i.e. useful generalisations about the way to deal with the normal run of cases falling within a particular category. The principal dilemma about the grant of interlocutory injunctions, whether prohibitory or mandatory, is that there is by definition a risk that the court may make the 'wrong' decision, in the sense of granting an injunction to a party who fails to establish his right at the trial (or would fail if there was a trial) or alternatively, in failing to grant an injunction to a party who succeeds (or would succeed) at trial. A fundamental principle is therefore that the court should take whichever course appears to carry the lower risk of injustice if it should turn out to have been 'wrong' in the sense I have described. The guidelines for the grant of both kinds of interlocutory injunctions are derived from this principle.
The question of substance is whether the granting of the injunction would carry that higher risk of injustice which is normally associated with the grant of a mandatory injunction. The second point is that in cases in which there can be no dispute about the use of the term 'mandatory' to describe the injunction, the same question of substance will determine whether the case is 'normal' and therefore within the guideline or 'exceptional' and therefore requiring special treatment. If it appears to the court that, exceptionally, the case is one in which withholding a mandatory interlocutory injunction would be in fact carry a greater risk of injustice than granting it even though the court does not feel a 'high degree of assurance' about the plaintiff's chances of establishing his right, there cannot be any rational basis for withholding the injunction.
These considerations lead me to conclude that the Court of Appeal in Locabail International Finance Ltd. v. Agroexpon  1 All ER 901,(1986) 1 WLR 657 was not intending to 'fetter the court's discretion by laying down any rules which would have the effect of limiting the flexibility Of the remedy', to quote Lord Diplock in the Cyanamid case (1975) 1 All ER 504, (1975) AC 396. Just as the Cyanamid guidelines for prohibitory injunctions which require a plaintiff to show no more than an arguable case recognise the existence of exceptions in Which more is required (compare Cayne v. Global Natural Resources plc,  1 All ER 225, so the guideline approved for mandatory injunctions in Locabail recognises that there may be cases in which less is sufficient.
A mandatory injunction can be granted on an interlocutory application as well as at the hearing, but, in the absence of special circumstances, it will not normally be granted. However, if the case is clear and one which the court thinks ought to be decided at once, or if the act done is a simple and summary one which can be easily remedied, or if the defendant attempts to steel a march on the plaintiff, such as where, on receipt of notice that an injunction is about to be applied for, the defendant hurries oh the work in respect of which complaint is made so that when he receives notice of ah interim injunction it is completed, a mandatory injunction will be granted on an interlocutory applications.
13. The law in United Stiles is the same and it may be found in 42 American Jurisprudence 22 Edn. 745 etc.
14. As far the cases decided in India we may note the following cases.
15. In one of the earliest cases in Rasul Karim A Anr. v. Pirubhai AMrbhm, ILR 1914 38 Bom. 381, Beaman, 3. was of the view that the court's in India have no power to issue a temporary injunction in a mandatory form but Shah, J. who constituted a Bench in that case did not agree with Beaman, J. in this view. However, in a later Division Bench judgment in Champsey Bhimji & Co. v. The Jamna Flour Mills Co. Ltd., MANU/MH/0046/1914 , two learned Judges of the Bombay High Court took a different view from Beaman, J. and this view is now the prevailing view in the Bombay High Court. In M. Kandaswami Chetty v. F. Subramania Chetty MANU/TN/0050/1917 , a Division Bench of the Madras High Court held that court's in India have the power by virtue of Order 39 Rule 2 of the CPC to issue temporary injunction in a mandatory form and differed from Beaman's view accepting the view in Champsey Bhimji & Co. v. Jamna Flour Mills Co. (supra). In Israil v. Shamser Rahman MANU/MH/0046/1914 , it was held that the High Court was competent to issue an interim injunction in a mandatory form. It was further held in this case that in granting an interim injunction what the Court had to determine was whether there was a fair and substantial question to be decided as to what the rights of the parties were and whether the nature and difficulty of the questions was such that it was proper that the injunction should be granted until the time for deciding them should arrive. It was further held that the Court should consider as to where the balance of convenience lie and whether it is desirable that the status quo should be maintained. While accepting that it is not possible to say that in no circumstances will the Courts in India have any jurisdiction to issue an ad interim injunction of a mandatory character, in Nandan Pictures Ltd. v. Art. Pictures Ltd. and Ors.} MANU/WB/0126/1956 : AIR1956Cal428 a Division Bench was of the view that if the mandatory injunction is granted at all on an interlocutory application it is granted only to restore the status quo and not granted to establish a new state of things differing from the state which existed at the date when the suit was instituted.
17. Being essentially an equitable relief the grant or refusal of an interlocutory mandatory injunction shall ultimately rest in the sound judicial discretion of the Court to be exercised in the light of the facts and circumstances in each case. Though the above guidelines are neither exhaustive or complete or absolute rules, and there may be exceptional circumstances needing action, applying them as prerequisite for the grant or refusal of such injunctions would be a sound exercise of a judicial discretion.
44. Where one of two or more co-owners of Immovable property legally competent in that behalf transfers his share of such property or any interest therein, the transferee acquires, as to such share or interest, and so far as is necessary to give effect to the transfer, the transferor's right to joint possession or other common or part enjoyment of the property, and to enforce a partition of the same, but subject to the conditions and liability affecting, at the date of the transfer, the share or interest so transferred.
Where the transferee of a share of a dwelling-house belonging to an undivided family is not a member of the family, nothing in this section shall be deemed to entitle him to joint possession or other common or part enjoyment of the house.
19. In order to attract the second paragraph of this section the subject-matter of the transfer has to be a dwelling house belonging to an undivided family and the transfer is a share in the same to a person who is not a member of the family. Therefore, in order to satisfy the first ingredient of clear existence of the right and its infringement , the plaintiff will have to show a probable case that the suit property is a dwelling house and it belonged to an undivided family. In other words, on the facts before the Court there is a strong probability of the plaintiff getting the relief prayed for by him in the suit. On the second and third ingredients having regard to the restriction on the rights of a transferee for joint possession and the dominant purpose of the second paragraph of Section 44 of the Act, there is danger of an injury or violation of the corresponding rights of the other members of the family and an irreparable harm to the plaintiff and the Court's interference is necessary to protect the interest of the plaintiff. Since the relief of an interim injunction is all the same an equitable relief the Court shall also consider whether the comparative mischief or inconvenience which is likely to issue from withholding the injunction will be greater than that which is likely to arise from granting it, which means that the balance of convenience is in favour of the plaintiff.
...in it (Section 4 of the Partition Act) we find nothing to indicate that it was intended to apply to any limited class of the community. The words 'undivided family' as used in this section appear to be borrowed from Section 44 of the Transfer of Property Act. The last clause of that section prescribes that where the transferee of a share of a dwelling house belonging to an undivided family is not a member of the family nothing in this section shall be deemed to entitle him to joint possession or other common or part enjoyment Of the dwelling house. This provision of the Statute is clearly of general application, and the effect of it is to compel the transferee of a dwelling house belonging to an undivided family, who is a stranger to the family, to enforce his rights in regard to such share by partition. There appears to me to be no reason why the words 'undivided family' as used in Section 4 of the Partition Act, should have a narrower meaning than they have in Section 44 of the Transfer of Property Act. If the Legislature intended that Section 4 should have limited operation, we should expect to find some indication of this in the language of the section. For example, instead of the words 'undivided family' the expression 'undivided Hindu family' or 'joint family' might have been used.
as was pointed out by Mr. Wells, Judicial Commissioner, in the case of kalka Parshad v. Bankey Lall,  9 Oudh Cases, 158 is to prevent a transferee of a member of a family who is an outsider from forcing his way into a dwelling house in which other members of his transferor's family have a right to live, and that the words 'undivided family' must be taken to mean 'undivided qua the dwelling house in question, and to be a family which owns the house but has not divided it'.
The word 'family', as used in the Partition Act, ought to be given a liberal and comprehensive meaning, and it does include a group of persons related in blood who live in one house or under one head or management. There is nothing in the Partition Act to support the suggestion that the term 'family' was intended to be used in a very narrow and restricted sense, namely, a body of persons who can trace their descent from a common ancestor.
If in this state of things, a member of the family transfers his share in the dwelling house to a stranger paragraph 2 of Section 44 of the Transfer of Property Act comes into play and the transferee does not become entitled to joint possession Or any joint enjoyment of the dwelling house although he would have the right to enforce a partition of his share. The object of the provision in Section 44 is to prevent the intrusion of the strangers into the family residence which is allowed to be possessed and enjoyed by the members of the family alone in spite of the transfer of a share therein in favour of a stranger. The factual position as has been determined is that the property is still an undivided dwelling house, possession and enjoyment whereof are confined to the members of the family. The stranger-transferees being debarred by law from exercising right of joint possession which is one of the main incidences of co-ownership of the property should be kept out.
If the transferee (stranger) get into possession of a share in the dwelling house, the possession becomes a joint possession and is illegal. Courts cannot countenance or foster illegal possession. The possession of the defendant-transferee in such a case becomes illegal. Plaintiff's co-owners are entitled to get a decree for eviction or even for injunction where the transferee threatens to get possession by force. If there had been a finding that there was severance of joint status but no partition by metes and bounds, defendant 1 was liable to be evicted from the residential houses and Bari under Section 44 of the T.P. Act.
23. The last contention of Mr. Pal is that the plaintiff sued for injunction only. The learned trial judge, however, has decreed ejectment of the transferee defendants and that decree has been upheld. Once it is held that the plaintiff is entitled to protection under the second part of Section 44 of the Transfer of Property Act and the stranger purchasers are liable to be restrained, it would follow that even if the defendants have been put in possession or have come jointly to possess they can be kept out by injunction. The effect of that injunction would necessarily mean ejectment. In that sense and to the said extent, the decree of the trial court upheld by the lower appellate court must be taken to be sustainable. The remedy of the stranger purchaser is actually one of partition. Until then, he is obliged to keep out from asserting joint possession."
24. We may respectfully state that this is a correct statement of the law. There could be no doubt that the ratio of the decisions rendered under Section 4 of the Partition Act equally apply to the interpretation of the second paragraph of Section 44 as the provisions are complementary to each other and the terms "undivided family" and "dwelling house" have the same meaning in both the sections.
25. It is not disputed that prior to 1951 the suit dwelling house belonged to the undivided family of the appellant and his father and they were owning the same as joint tenants. The High Court has relied on a letter dated 12th March, 1951 of the appellant to his father in which the appellant had expressed a desire to retain his share separately so as to enable him to dispose of the same in a manner he choses and also enable his heirs to succeed. In pursuance of this letter the appellant and his father executed an agreement dated 23rd of August, 1951 by which they declared that they have severed their status as joint tenants and that henceforth they were holding the said piece of land D and building as tenants in common in equal undivided half share. In the view of the High Court this conversion of joint tenancy of an undivided family into a tenancy in common of the members of that undivided family amounts to a division in the family itself with reference to the property and that, therefore, there shall be deemed to have been a partition between the appellant and his father. In support e of this conclusion the High Court also relied on the further fact that subsequent to the death of the father and marriage of Sohrab the appellant's family and Sohrab's family were occupying different portions of the suit property and enjoying the same exclusively. We are afraid that some notions of co-parcenary property of a Hindu joint family have been brought in which may not be quite accurate in considering Section 44; but what is relevant for the purpose of these proceedings was whether the selling house belonged to an undivided family. We have already pointed out that even if the family is divided in status in the sense that they were holding the property as tenants in common but undivided qua the property that is the property had not been divided by metes and bounds it would be within the provisions of Section 44 of the Act.
26. We had also noticed earlier that Cawasji, the father of the appellant transferred his undivided half share in the suit property in favour of his son Sohrab under a deed dated 16-4-1982. Two questions may arise for consideration whether this transaction is covered by Section 44 of the Act and whether after the transfer, the appellant's brother and the appellant can be said to be holding the property as undivided family. The transfer by the father in favour of Sohrab was a transfer in favour of a member of a family as Sohrab was living with them. Sohrab attained the age of 18 only on 25th December, 1951 and as seen from the other documents he was living with his father and brother till 1968 when he got married. It is only after he was married the appellant and Sohrab were occupying different portions of the suit property and having different mess. In the absence of a document evidencing partition of the suit house by metes and bounds and on the documentary evidence showing that the property is held by the appellant and his brother in equal undivided shares, we are of the view that the plaintiff appellant has shown a prima facie case that the dwelling house belonged to an undivided family consisting of himself and his brother.
27. The two brothers, therefore, shall be deemed to be holding the property as members of an undivided family and in the absence of the partition by metes and bounds qua this property they shall be deemed to have been holding the dwelling house as an undivided family. Prima facie, therefore, the transfer by defendants 1 to 3 would come within the mischief of second paragraph of Section 44 of the Act.
28. The next question for consideration is whether irreparable injury would be caused to the appellant which could not be compensated in terms of money and whether the balance of convenience is in favour of the appellant. While Section 44 does not give a transferee of a dwelling house belonging to an undivided family a right to joint possession and confer a corresponding right on the other members of the family to deny the right to joint possession to a stranger transferee, Section 4 of the Partition Act gives a right to a member of the family who has not transferred his share to purchase the transferee's share on a value to be fixed in accordance with law when the transferee filed a suit for partition. Both these are valuable rights to the members of the undivided family whatever may be the object or purpose for which they were conferred on such members. As we have pointed out in some cases it is stated that the right to joint possession is denied to a transferee in order to prevent a transferee who is an outsider from forcing his way into a dwelling house in which the other members of his transferee's family have a right to live. In some other cases giving joint possession was considered to be illegal and the only right of the stranger purchaser is to sue for partition. All these considerations in our opinion would go only to show that denying an injunction against a transferee in such cases would prima facie cause irreparable injury to the other members of the family.
30. This provision in the agreement clearly show that the fourth respondent knew that respondents 1 to 3 have only a limited right to transfer their undivided one half share to a stranger purchaser and they contemplated litigation in this regard. The said sale was itself hurriedly executed in a hush-hush manner keeping the entire transaction secret from the appellant. The purchasers were also inducted in the premises in a manner which clearly suggests that the respondents were attempting to forestall the situation and to gain an undue advantage in a hurried and clandestine manner defeating the appellant's attempt to go to court for appropriate relief. The suit itself was filed on 18th April, 1987 within two days of the sale without any delay, On that very day the appellant obtained an interim exparte order in the injunction application but when it was sought to be executed it was reported that the 4th respondent had already taken possession and in view of that the interim order was granted by bracketing the words "remaining in possession" without giving an effect to it pending further consideration of the interim application. By consent of parties a Commissioner was appointed on 22.4.1987 itself. The report of the Commissioner showed that not all the articles of Vendors have been removed and the moveables of the purchasers were also only in the process of being brought into the house. These facts showed the anxiety of the fourth respondent to complete the taking of possession before any order could be obtained by the appellant from the Court. The learned Counsel also referred to the affidavit filed by the first respondent wherein she has still claimed that she is residing in the suit property and the affidavit filed by the fourth respondent in the suit as if he is residing somewhere else and not in the suit property. The learned Counsel also referred to some telephone directories, telephone numbers and addresses given therein which also show that the fourth respondent is residing and having an office in some other places also other then the suit premises. These evidences go to show that the purchaser has occupied the disputed property merely for the purpose of establishing his claim and he did not vacate his earlier permanent residence. On the other hand the appellant had to leave from the portion of the house where he was living as it was not possible for him to reside there with stranger. The respondents in such circumstances cannot be permitted to take advantage of their own acts and defeat the claim of the appellant in the suit by saying that old cause of action under Section 44 of the Transfer of Property Act no longer survived in view of their taking possession. In such circumstances it is but just and necessary that a direction should go to the respondents to undo what they have done with knowledge of the appellant's rights to compel the purchaser or to deny joint possession.
31. These facts in our view clearly establish that not only a refusal to grant an interim mandatory injunction will do irreparable injury to the appellant but also balance of convenience is in favour of the appellant for the grant of such injunction. In the result we allow the appeal, set aside the judgment of the High Court and restore that of the trial court with costs in this appeal.
32. We may add that our observations on facts are not to be taken as binding at the time of final disposal of the suit after trial. We also make it clear that if the vendors desire to come and stay in the portion of the house which was in their possession earlier, they may indicate it to the Court and the trial court on such request will pass appropriate orders in that regard.

matches: V. v. v. v. v. v. v. v. v. v.