Patna High Court
Nanda Gopal And Anr. vs Baidyanath Dutta And Ors. on 5 October, 1956
Equivalent citations: AIR1957PAT87, 1957(5)BLJR121, AIR 1957 PATNA 87, ILR 35 PAT 1175
Author: Chief Justice
Bench: Chief Justice
JUDGMENT Raj Kishore Prasad, J.
1. This is a Letters Patent Appeal, against the judgment of Mr. Justice Ratikant Choudnury, who has affirmed the judgment and decree of the first appellate court, which dismissed the plaintiffs' suit.
2. Two main questions arise : the first, whether decrees, passed in favour of Baidyanath Dutt, defendant-respondent, in Rent Appeals 41 and 42 of 1944-45, by the Deputy Commissioner, Manbhum, are without jurisdiction; and the second, even if so, whether Section 47, Code of Civil Procedure, is a bar to the present suit of the plaintiffs-appellants.
3. The facts, in brief, are these : Shambhu Nath Dutta and his three other brothers, who were brothers of Baidyanath Dutta, defendant-respondent 1, brought two rent suits against the plaintiffs, in the court of the Deputy Collector at Purulia under Section 142 (1) (B) of the Chotanagpur Tenancy Act, 1908 (Bengal Act VI of 1908), hereinafter referred to as "the Act". To each of these suits, Baidyanath Dutt, defendant-respondent 1, was made a pro forma defendant. The plaintiffs, of those suits, claimed -/12/- interest in the claimed holding, and, alleged that their brother, Baidyanath Dutt, the pro forma defendant of those suits was their co-sharer in respect of the remaining -/4/- share.
4. Appellant 1, who was defendant 2, in one of the suits, and defendant 3, in the other, filed a written statement, in both the suits, alleging that there was no relationship of landlord and tenant between the plaintiffs and him, and the other principal tenant-defendants of those suits, and, that the pro forma defendant, Baidyanath Dutt, was the sole landlord of the rent claimed lands.
5. The pro forma defendant, Baidyanath Dutt, respondent 1, also filed his written statement in those suits, supporting the plaintiffs, his brothers, that they had -/12/- share, and, he had -/4/- share. He, further, averred that the tenants-appellants had not paid to him anything out of the rent due. He, therefore, prayed that a separate decree may be passed in his favour, in respect of the arrears of rent due to him.
6. The two rent suits were tried together by the Rent suit Deputy Collector, who, on the 28th December, 1944, dismissed both the suits, holding that there was no relationship of landlord and tenant between the plaintiffs and the tenants-defendants, because, the pro forma defendant Baidya-nath Dutt, was the sole landlord of the rent claimed holdings.
7. Against these decrees, two rent appeals, R. A. 41 and 42 of 1944-15, were filed, before the Deputy Commissioner, Manbhum. In these appeals, Baidyanath Dutt, the pro forma defendant was also made a respondent, along with the tenants-respondents.
8. Before the appellate Court, Baidyanath putt, co-shares respondent, filed a petition, dated the 28th April, 1945, on the 7th July, 1945, praying that if he be considered the sole landlord of the rent claimed holdings, then, as the full court-fee had already been paid on the entire rent, by the plaintiffs-appellants of these appeals, decrees be passed for the entire rent in his favour.
This application was considered by the Deputy Commissioner, in his judgment, dated the 13th August, 1945, by which he dismissed the appeals of the plaintiffs of those suits, but accepted the petition of the pro forma defendant, Baidyanath Dutt, and, passed decrees for the entire rent in his favour, according to his prayer. These are the two decrees, passed by the Deputy Commissioner in the two rent appeals, which are now being challenged by the tenants-defendants of those suits, by a separate suit, as being without jurisdiction.
9. These decrees were executed before the Deputy Commissioner. Before the executing court, the present appellants filed objections, on the ground that the decrees under execution were without jurisdiction and, nullities, and, therefore, inexecutable. These objections were rejected, by the executing court, on the 13th July, 1946. After the rejection of their objection, the present suit was brought by the tenants-judgment-debtors, for a declaration that the decrees passed in the rent suits and the connected rent appeals, in favour of Baidyanath Dutt, were without jurisdiction, and, therefore, he should be restrained from proceeding with the execution of those decrees.
10. The appellants' suit was decreed by the first additional Munsif, Purulia, but his judgment and decree were reversed, on appeal by the respondent, Baidyanath Dutt, and, the appellants' suit was dismissed. Against this judgment and decree of. the first appellate court, a second appeal was preferred to this court, which was heard by Mr. justice Ratikant Choudhury, who by his judgment, dated the 11th May, 1954, affirmed the judgment and decree of the first appellate court, and, dismissed the appeal of the plaintiffs, but granted them leave to appeal under the Letters Patent.
11. Mr. A. N. Chatterjee, who appeared for the plaintiffs-appellants, has attacked the appellate decrees, passed by the Deputy commissioner, in the two rent appeals, which are under execution, as without jurisdiction, on two grounds : (1) that Baidyanath Dutt, respondent 1, being a pro forma defendant-respondent, in the two appeals before the Deputy Commissioner, no decree could be passed in his favour, because he was a defendant, and a not plaintiff; & (2) that the appeals before the Deputy Commissioner against the judg-ment of the Deputy Collector were incompetent, in that, the appeals lay only to the Judicial Commissioner, as required by Sub-section (2) of Section 215 of the Act. He has further argued that the decrees under execution, being withput jurisdiction, were inexecutable, and, as such Section 47 of the Code of Civil Procedure, 1908, was no bar to the present suit.
12-13. The first ground taken, for showing that the decrees, under execution, were without Jurisdiction, because a decree cannot be passed In favour of a defendant, at first sight seems attractive, but on going deep in the matter, it Will be found that the shadow cast is cleared up.
14. The suits, instituted by the brothers of Baidyanath Dutt, respondent, were in accordance with the provisions of Section 142(1) (b) of the Act. In the plaint of each of the two suits, the plaintiffs prayed for a decree in respect of the entire claim and paid court-fee thereon. Alternatively, they also prayed that if it be found that their co-sharer, the pro forma defendant, Baidyanath Dutt, had not realised the rent, due to him, and, if be did not desire to be included in the category of the plaintiffs, then in that case separate decrees may be passed in respect ol the amount due to them both as specified in Schedules 2 and 3, attached to the plaint, in favour of the plaintiffs, and also in favour of the pro forma defendant.
The pro forma defendant, Baidyanath Dutt, appeared in both the suits, and filed his written statement asserting that the tenants-defendants had not paid rent to him also, and, as such, a separate decree may be passed in his favour in respect of his share in each suit. The first court dismissed the plaintiffs' suits, because, it found that there was no relationship of landlord and tenant between the plaintiffs and the principal defendants, who are the present plaintiffs-appellants.
It further found that the sole landlord Of the rent claimed holding was the pro forma defendant, Baidyanath Dutt as alleged by the tenants-defendants. On that finding, no doubt it should have passed a decree in favour of the pro forma defendant, as prayed for by him, at least, in respect, of his share, but it did not apply its mind to this aspect of the matter, and therefore, dismissed both the suits in toto.
15. On appeal by the plaintiffs of those suits, the pro forma defendant was also made a respondent, and, before the appellate court he filed a petition, referred to before, praying that the decree for the entire rent be passed in his favour, if he .be found to be the sole landlord, because full court-fee on the entire amount had already been paid. The Deputy Commissioner in his Judgment dealt with this petition, and allowed the prayer of the pro forma defendant, and passed a decree for the entire amount in his favour in each of the two appeals.
16. In my opinion, the contention that because the pro forma defendant was not a plaintiff, or a co-plaintiff, and, he never sought to be BO, the appellate court had no jurisdiction to pass decrees in his favour, as he was in the category of a defendant, is not well founded, and it cannot be sustained on the true interpretation of Section 142(2) of the Act, It is advisable, at this stage, to read Section 142 of the Act, which is in these terms :
"142. (1) Notwithstanding anything contained in Section 257, a co-sharer landlord may institute a suit to recover from a tenant--
(a) his share of the rent, when such share is collected separately, or
(b) the whole of the rent due to the plaintiff and his co-sharers, when all or any of his co-sharers who refuse to join in the suit are made defendants therein.
(2) When, in a suit instituted under Clause (b) of Sub-section (1), the plaintiff is unable to ascertain what rent is due for the whole tenure or holding, or whether the rent due to the other co-sharer landlords has been paid or not, owing to the refusal or neglect of the tenant or the said, landlords to furnish him with correct information on these points or either of them, the Deputy Commissioner shall determine--
(i) what sum (if any) is due to the plaintiff for rent, interest thereon "and costs, and
(ii) what sum (if any) are due to the said landlords, respectively, on account of their share of the rent and interest thereon, for the period in respect of which the suit is brought : and shall decree the suit accordingly.
(3) Notwithstanding anything contained in Explanation I to Section 47, or in Section 196, a decree awarding to a plaintiff a sum referred to in Clause (i) of Sub-section (2) shall, as regards the remedies for enforc-
ing the same, be as effectual as a decree obtained by a sole landlord or an entire body of landlords In a suit brought for the rent due to all the co-sharers.
(4) when the sums due from a tenant to any co-sharer landlord are determined under Clause (ii) of Sub-section (2), in respect of any period, then no further suit shall lie against such tenant for rent alleged to be due to such landlord in respect of that period."
. 17. Section 142(2) provides that when a suit by a co-sharer landlord for the whole rent due to him and his co-sharer is brought under Section 142(1) (b), the Deputy Commissioner shall determine what sum (if any) is due to the plaintiff for rent, and what sums (if any) are due to the co-sharer landlord on account of his share of the rent for the period in respect of which the suit is brought, and, after such determination, the Deputy Commissioner "shall decree the suit accordingly".
Section 142 (2), therefore, means that if the sums due to the plaintiff and to the co-sharer landlord or landlords, as the case may be, are determined by the Deputy Commissioner, he must decree the suit in accordance with his determination of the rent due to the plaintiff and the pro forma defendant. It does not provide that in such ft case, the co-sharer defendant has to be transposed to the category of the plaintiff, or co-plaintiff.
For the purpose of Section 142(2), the co-sharer plaintiffs as well as co-sharer defendants are both treated on the same footing, and, both are considered as, and are in the position of, plaintiffs entitled to the rent due to them. In such a case, it is not necessary that the co-sharer defendant should be transposed to the category of the plaintiff, and, then, a decree should be passed in his favour.
What the law requires is that the moment it is determined, by the Deputy Commissioner, in a suit by a co-sharer landlord, to recover the whole of the rent due to him and his co-sharer under Section 142(i)(b) of the Act, that the rent is due to the co-sharer defendant also he will pass a decree in his favour also, and, the decree, which will be prepared in such a suit, will show the sums due to the plaintiff and the co-sharer defendant separately, and, for the purpose of execution of such a decree, the co-sharer defendant, in whose favour also a decree has been passed In respect of his share of the rent under Section 142(2) of the Act. will be treated as a decree-holder.
18. This view of mine is reinforced by Sub-section 4 of Section 142 of the Act, which provides that after the determination of the sum due from a tenant to any co-sharer landlord under Clause (ii) of Sub-section 3, of Section 142, in respect of any period, no further suit shall lie against such a tenant for rent alleged to be due to such a landlord in respect of that period.
This is also a clear manifestation of the in-tention of the legislature that the court can pass a decree in favour of a co-sharer defendant, and, if such a decree is passed in his favour, he is to be treated a decree-holder, and, such a decree, passed in favour or a co-sharer defendant, will be perfectly justified by the language and terms of Section 142(2) of the Act. .
19. A suit, which is framed under Section 142(1) (b) of the Act, is notionally, at all events, a suit for the entire rent If the landlord does not Know what rent has been paid to his co-sharers, he, by impleading them, gives them a chance to raise any case they may have on that point . The sharer, therefore, whose co-sharers refused to join him as plaintiff, can bring them into the suit as defendants, and sue for the whole rent of the tenure, or holding.
Such a suit, in form, is for the whole rent, and, in substance, for the separate share of rent in arrears, but the whole body of landlords are impleaded as defendants with the allegation that the plaintiff has not been able to ascertain what, if any, rents are due to the former. In such a case, the whole rent due must be always a matter of speculation for the plaintiff, and, he is entitled to assert that he believes that his share of the rent due is the entire rent due, and asks the court to decide on the accuracy of that belief, if and when the impleaded co-sharers appear and claim any arrears as due to themselves.
If his belief is accurate, the court will give him a decree of his share only as being the entire due; if inaccurate, the Court will investigate and decree the arrears due to the impleaded co-sharers as Well. In such a suit, the plaintiff may make a prayer, in the alternative, that If rent should be found due to the co-sharer defendant, a decree in his favour should be passed after realization of Court-fee, if the plaintiff himself has not claimed the whole rent and paid court-fee thereon.
The Intention is that the suit for the period covered Is to deal with the whole of the rent so that the tenant is not subjected to a multiplicity of suits in respect of the same matter, in such a case, if the pro forma co-sharer defendant, ex abundanti cautela, wished to be added as plaintiff on disclosing what was due to him, then he might be transferred from the category of the defendant to that of the plaintiff.
But there is nothing to suggest or to Infer from, the language of Section 142(2) of the Act that no decree can be passed in favour of the co-sharer defendant, if he appears and prays for such a decree, and if the court-fee has been paid for the whole rent by the plaintiff himself, without transposing him to the category of the plaintiff, because such a suit is virtually a suit for recovery of the entire rent from the tenant-defendant by the entire body of landlords; some of whom are the plaintiffs and others are defendants.
Therefore, in such a suit, the court will have power in terms of Section 142(2) of the Act to pass a decree In favour of the pro forma co-sharer defendants even without the latter having been transferred to the category of the plaintiffs, if they have asserted that their share of the rent is also due, and, a decree should be passed in their favour also.
20. Such a procedure is not unknown to law : for instance, a decree for partition, is not like a decree for money, or for the delivery of a specific property, which is only in favour of the plaintiff in the suit. It is a joint declaration of the rights of persons interested in the property, of which partition is sought and having been so made It is not necessary for those persons, who are defendants in the suit, to come forward and institute a suit to have the same rights declared under a second order made.
A decree in such suits is a decree, properly drawn up, in favour of each share holder, or a set of share holder having a distinct share. In the present case also, therefore, if a decree would have been passed in favour of the plaintiff as well as in favour of the defendant, the decree would have been valid for both, but where the court finds that really it is the co-sharer defendant, who is the sole landlord entitled to the rent of the holding, the Court would be perfectly justified In passing a decree in his favour, and, such a person would be considered to be in the position of a decree-holder.
A "decree-holder" has been defined, in Section 2(3) of the Code of Civil Procedure, as meaning any person in whose favour a decree has been passed, or, an order capable of execution has been made. This definition, also, therefore, lends support to the view I have taken. In my opinion, therefore, the decrees cannot be attacked on the ground that, because they were passed in favour of a co-sharer defendant, who was not a plaintiff, or, who did not seek to be transferred to the category of the plaintiff, but who remained throughout on the record as a co-sharer pro forma defendant, they are without jurisdiction. The first ground of attack, therefore, has no force, and must, accordingly, be rejected.
21. Mr. Chatterji has attacked the impugned decrees also on the ground that they were passed by a court which had no jurisdiction to entertain the appeals. He has relied, in this connection, on Section 215(2) of the Act, Section 215 (1) and (2) are in these terms :
"215. (1) All orders passed by a Deputy Commissioner in suits tried by him under Sub-clause (c) of Clause (2) or Clause (7) of Section 139, if the amount sued for, or the value of the property claimed, does not exceed one hundred rupees, the Judgment of the Deputy Commissioner shall be final and not subject to appeal, unless a question relating to a title to land, or to some interest in land, as between parties haying conflicting claims thereto, has been determined by the judgment, in which case the judgment shall be open to an appeal which shall lie to the Judicial Commissioner unless the amount or value in dispute exceeds five thousand rupees in which case the appeal shall lie to the High Court.
(2) When any such suit in which, if tried and decided by a Deputy Commissioner, the Judgment of the Deputy Commissioner would be final is tried and decided by a Deputy Collector, an appeal from the judgment of the Deputy Collector shall lie to the Deputy Commissioner unless a question relating to a title to land, or to some interest in land, as between parties having conflicting claims thereto, has been determined by the judgment, in which case the judgment shall be open to appeal to the Judicial Commissioner and to the High Court as provided for in Sub-section (1).
x x x x x"
22. The argument put forth on behalf of the appellants is that "a question relating to a title to land" had been determined by the Deputy collector, who heard the rent suits, therefore, the appeal against his judgment lay to the Judicial Commissioner, as required by Sub-section (2) of Section 215 of the Act.
23. A suit under Section 142 of the Act has to be filed before the Deputy Commissioner as required by Section 139 of the Act. The decision of the Deputy Commissioner in such a suit becomes final under Section 139A read with Section 215(1) of the Act. The words "Deputy Commissioner" under Section 3(viii)(a) of the Act include a Deputy Collector, specially empowered by the State Government to discharge any of the functions of a Deputy Commissioner under any provisions of this Act.
24. In the present case, the rent suits were instituted before the Deputy Collector. Section 215(1) provides that if a suit, in which the amount sued for does not exceed Rs. 100/- (as was the case in the two suits under consideration), is tried by the Deputy Commissioner, it shall be final, "unless a question relating to a title to land, or to some Interest in land, as between parties having conflicting claims thereto, has been determined by the judgment", in which case the judgment shall be open to an appeal, which shall lie to the Judicial Commissioner, unless the amount does hot exceed Rs. 5,000/-.
Section 215(2) provides that if such a suit is decided by a Deputy Collector, then also an appeal will lie to the Judicial Commissioner. Relying on this, Mr. Chatterjee has contended that because there was a dispute of title relating to the rent claimed holding as to whether the plaintiffs were co-sharer landlords, or, the pro forma defendant was the sole landlord, as asserted by the tenants-defendants, and, this question was decided by the Deputy Collector in favour of the tenants-defendants, the appeal could have been filed against this Judgment only to the Judicial Commissioner, and not to the Deputy Commissioner, and, therefore, the two rent appeals filed before the Deputy Commissioner were without Jurisdiction, and, as such, the decrees passed by him in such appeals are also without Jurisdiction. I am not at all impressed by this argument.
25. In the present case, as far as the plaintiffs and the pro forma defendant of those two rent suits were concerned, there was absolutely no dispute between them regarding their respective title to, or, interest in the rent claimed land. Their title was disputed only by the tenants-defendants, but Section 215(2) requires that "a question relating to a title to land, or to some interest in land", should be as between parties having conflicting claims thereto. There was, therefore, no conflict between the plaintiffs and the pro forma defendant themselves in respect to their respective title to the rent claimed land.
The question of title was raised by the tenants-defendants, which was not accepted by the landlords themselves. In such circumstances, Sub-section (2) of 6. 215 of the Act is not at all attracted, and, therefore, the only Court which could entertain appeals against the judgment of the Deputy Collector, who decided the rent suits, was the Deputy Commissioner and none else.
26. The words "as between parties having conflicting claims thereto" must, obviously, mean a conflict between the landlords inter se. These words do not contemplate a dispute between the landlords and the tenants, as long as the latter does not say that he is not a tenant, but he is himself the landlord of the rent claimed holding. Where, therefore, the tenant raises the question of title as between the landlords, who are parties to the suit, but the landlords themselves do not lay any conflicting claims to each other, the operation of Section 215(1) or Section 215(2) of the Act is not attracted.
27. If this be the correct interpretation of Section 215 (2) of the Act, then, in my opinion, the Deputy Commissioner has jurisdiction to entertain the appeals, and, therefore, the decrees passed by him in the two rent appeals were with Jurisdiction, and not without jurisdiction. The second ground of attack also must, therefore, be overruled.
28. For the reasons given above, I hold that the decrees under execution, which were sought to be challenged in the present suit, were not without jurisdiction and nullities, but were valid decrees, and, binding on the present plaintiffs, in the absence of any allegation and proof of fraud.
29. The next contention of Mr. Chatterji is that Section 47 of the Code of Civil Procedure is not a bar to the present suit of the appellant. Decrees and orders passed by a Deputy commissioner under the Act, as required by Section 182 of the Act, may be executed either at his own court, or of any other prescribed Court. In the present case, the rent decrees were executed in the court of the Deputy Commissioner as required by the Act. To such a proceeding for execution before the Deputy Commissioner, the provisions of the Code of Civil Procedure were applicable by virtue of Section 265 (3) of the Act. Section 265 Is In these terms :
"265. (1) The State Government may make rules for regulating the procedure of the Deputy Commissioner in matters under this Act for which a procedure is not provided hereby; and may, by any such rule, direct that any provisions of the Code of Civil Procedure, 1908, shall apply, with or without modification, to all or any classes of cases before the Deputy Commissioner.
(2) When any provision of the said Code is applied by such rules, the rules may further declare that any provision of this Act which is superseded By or is inconsistent with, any provision BO applied shall be deemed to be repealed.
(3) Until rules are made under Sub-section (1), and subject to those rules when made and to the other provisions of this Act, the provisions of the Code of Civil Procedure, 1908, shall, so far may be, and in so far as they are not inconsistent with this Act, apply to all suits, appeals and proceedings before the Deputy Commissioner under this Act, and to all appeals from decisions passed in such suits or proceedings".
30. In the present case, it has not been contended, nor has it been shown, that any rules as required under Section 265(1) have been framed by the State Govt. by which any provisions of the Code of Civil Procedure have been made inapplicable to an execution proceeding before the Deputy Commissioner. Under Sub-section (3) of Section 265 of the Act, until such rules are made, and, subject to those rules, when made, and, to the other provisions of this Act, the provisions of the Civil Procedure Code shall, so far as may be, and, in so far as they are not inconsistent with this Act, apply not only to all suits and appeals, taut also to all proceedings before the Deputy Commissioner under this Act.
A proceeding for execution of a decree, under Section 182 of the Act, is a proceeding within the meaning of, and, included in the word "proceedings" occurring in Sub-section (3) of Section 265 of the Act, to my opinion, therefore, Section 47 of the Code was applicable to the execution proceeding before the Deputy Commissioner and, therefore, if the decrees are with jurisdiction, then certainly Section 47 would be a bar to the present suit.
Section 47(1) requires that all questions arising between the parties to the suit, in which the decree was passed, or their representative, and relating to the execution, discharge or satisfaction of the decree, shall be determined by the Courts executing the decree, and not by a separate suit. On my finding that the decrees were with jurisdiction, the objection, which has been raised now by the suit, should have been raised under Section 47 of the Code in the execution proceeding itself, and not by the present suit. Section 47, therefore, is a clear bar to the maintainability of the suit.
31. Section 47 of the Code, however, has no application when the decree is a nullity, for such a decree is not a decree at all. It is now a settled law that where the court passing a decree had no inherent jurisdiction to pass it, the decree is a mere nullity and is void, inoperative and incapable of execution. It is true that a court executing a decree can go behind the decree. It must take the decree as it stands.
It has no power to entertain any objection as to the validity of the decree, or as to the legality of the character of the decree, but this is only true in a case when a court passing the decree had got jurisdiction to pass it, but where the court passing the decree was inherently Incompetent to pass the decree and had absolutely no jurisdiction to pass it, its decree is a nullity, and no question as to the validity of the decree arises in such a case.
To such a decree Section 47 of the Code of Civil Procedure has no application, for such a decree is not a decree at all. This view was taken by a Full Bench of the Chief Court of Oudh in Ram Narain v. Lala Suraj Narain, ILR 9 Lucknow 435 : (AIR 1934 Oudh 75) (FB) (A), in which all the oases of the different High Courts, and of the Judicial Committee of the Privy Council, are collected, and have been reviewed.
32. Where, therefore, a decree presented for execution is made by a Court which apparently had no jurisdiction, whether pecuniary or territorial, or in respect of the judgment-debtor's person, to make the decree, the executing Court is entitled to refuse to execute it on the ground that it was made without jurisdiction, and that within these narrow limits, the executing court is authorised to question the validity of a decree.
No doubt, it has no power to go beyond its terms, but it has power to interpret the decree, although under the guise of interpretation it cannot make a new decree for the parties.
33. In the present case, the court which passed the decrees had jurisdiction to make them, and, that therefore, they were not void and nullities, and, as such, the executing court had no power to entertain an objection as to the validity of the decrees, or as to the legality of the character of the decrees, and, to such decrees, Section 47 of the Code of Civil Procedure had application, and, therefore, the contention of Mr. Chatterji that Section 47 of the Code was no bar to the suit must be overruled.
34. For the reasons given above, without proceeding upon the same line of reasoning as that adopted by Mr. Justice Choudhary, I nave also come to the same conclusion, to which Mr. Justice Choudhary reached, that the plaintiffs' suit was barred under Section 47 Of the Code of Civil Procedure.
35. I would, therefore, affirm the decision of Mr. Justice Choudhary, and dismiss the appeal with costs.
Ramaswami, C. J.
36. I agree.