JUDGMENT
Birendra Prasad Sinha, J.
1. These three cases have been heard together and are being decided by a common judgment.
2. At the very outset, I would state the relevant facts leading to these applications. On the 22nd Dec. 1975, Jainarain Sharma, petitioner in Original Criminal Miscellaneous No. 17 of 1976 and opposite party No. 1 in the two criminal miscellaneous cases, filed Cr. W. J. C. No. 400 of 1975, under Articles 226 and 227 of the Constitution of India, for the issuance of a writ of mandamus directing the respondents of that case to return certain seized articles and to restore possession of the house situate in village Koshuk, P. S. Biharsharif, in the district of Nalanda. His case was that in a proceeding under Section 144 of the Cri. P. C. between him and one Chandeshwar Prasad Singh, all his movable properties were seized by Mahanth Pandey, the then Officer-in-charge Bihar-sharif P. S. (Petitioner in Criminal Miscellaneous No. 1795 of 1977), on the 6th of Dec. 1974, on the orders of P. K. Sinha, Superintendent of Police, Nalanda (Petitioner in Criminal Miscellaneous No. 1796 of 1977). This, according to him, was done under the direction of B. P. N. Shahi, the then D. I. G. (Transport), Patna, (since dead). Jainarain Sharma further alleged that on the 7th of Dec. 1974, he filed an application before the District Magistrate, Nalanda, who called for a report from the Sub-divisional Officer and the latter submitted a report which was annexure 2 to Cr. W. J.C. No. 400 of 1975. It was stated in that report that the police officers were helping Chandeshwar Pd. Singh who was related to (late) B-P. N. Shahi, D. I. G. of Police. It was also stated .that on 6th of Dec. 1974, Mahanth Pandey, in collusion with P. K. Sinha, dispossessed Jainarain Sharma and seized his properties and that the family members of Jainarain Sharma were seen staying under a tree. When the Sub-divisional Officer asked the Divisional Inspector of Police to maintain status quo, he was told that due to the interference of the Superintendent of Police (P. K. Sinha), he was unable to follow the instructions. A report was stated to have been submitted by the Divisional Inspector of Police on the 9th Dec. 1974, which was annexure 3 to the aforesaid writ application. In that report also it was stated that Mahanth Pandey was harassing Jainarain Sharma and that his properties had been illegally seized and the family members had been driven away from their house. Jainarain Sharma filed an application in the Court of Chief Judicial Magistrate for the release of seized articles on the 21st Dec. 1974. On the 15th of Feb. 1975, the Chief Judicial Magistrate ordered that the goods should be released forthwith but in spite of the said order the goods were not released Jainarain Sharma then filed an application before the Chief Judicial Magistrate for starting a contempt proceeding in which notices were issued. On the 12th of Mar,, 1975, Mahanth Pandey submitted a report to the Chief Judicial Magistrate, Biharsharif, in case No. 34 MPC of 1974. This was made annexure 7 to the writ application. In annexure 7, it was stated that the articles were seized from the residence of Jainarain Sharma by the order of the Superintendent of Police, Nalanda, under directions from the D.I.G. (C.I.D-), B. P. N. Shahi. It was further stated that the articles would be returned after obtaining instructions from the proper authority.
3. Apart from Mahanth Pandey and P. K. Sinha, petitioners in the present criminal miscellaneous cases, B. P. N-Shahi, Chandeshwar Prasad Singh, Dr. Jugal Narain Verma, Civil Surgeon, Nalanda, and S. B. S. Houra, Munsif-Magistrate, Biharsharif, Nalanda, were made respondents to the aforesaid writ application. The allegation against Dr, Verma and Shri Houra was that they had purchased some of the seized articles. Dr. Verma and Shri Houra appeared in the case and denied the allegations made against them. Notices were issued to Mahanth Pandey, P. K. Sinha and B. P. N. Shahi, the three police officers, as also to Chandeshwar Prasad Singh. In spite of service of the notices, none of them cared to appear or file counter-affidavit in the writ application to deny the allegations made against them. The writ application was ultimately heard by us and by our judgment and order dated the 13th of Sept. 1978, we directed Mahanth Pandey and P. K. Sinha to return the seized articles (in the condition they were on the date of their seizure) of Jainarain Sharma as mentioned in annexure 7 of the writ application within two weeks from that date. It was further directed that if any of the articles had perished or had become incapable of use for the purpose they were required for, Mahanth Pandey and P. K. Sinha should pay the price thereof to Jainarain Sharma. We also directed that Jainarain Sharma be restored forthwith the possession of his house from which he had been ousted. B. P. N. Shahi, D.I.G., had by that time died and as such no order was passed against him. The writ application was thus allowed in the above terms.
4. On the 18th Nov. 1976, Jainarain Sharma filed Original Criminal Misc. No. 17 of 1976, in which he prayed that a contempt proceeding should be started against Mahanth Pandey, P.K. Sinha and four others for wilful disobedience of the writ issued by this Court. On the 3rd Dec. 1976, notices were issued to Mahanth Pandey, P, K. Sinha and two others to show cause.
5. In original Criminal Misc. No. 17 of 1976 filed by Jainarain Sharma, it is alleged that after the judgment of this Court in Cr. W.J.C. No. 40o of 1975, he filed a petition before the Chief Judicial Magistrate on 22-9-76 for giving effect to the order of this Court. He also met the Superintendent of Police, Nalanda, on 23-9-76 in that connection. On 1-10-76, he was asked by opposite party Nos. 3 and 4, Bindeshwari Prasad and Shyam Narain Prasad, to go to the police station for taking back his properties. When he went to the police station, he found Mahanth Pandey and P. I. Sinha sitting there. They asked the petitioner to give in writing that he had received all the goods and that the possession of his house had been restored. When Jainarain Sharma refused to write anything without actually getting back the articles, he was taken into custody. He later came to know that he had been arrested in Case No. 74 (6) 76 under Section 420 I.P.C. He was released on bail on 5-10-76 but, during his absence, Mahanth Pandey and P. K. Sinha in collusion with opposite party No. 3 had again seized certain other articles from his house. However, we are not concerned with this seizure in the present case. It has been further stated that Mahanth Pandey and P.K. Sinha instead of returning the seized articles and restoring to him the possession of his house, obstructed the execution of the said order by further taking away the properties of Jainarain Sharma,
6. In response to the notice of show cause, opposite party Mahanth Pandey, P.K. Sinha and two others (Bindeshwari Prasad and Shyam Narain Prasad) filed their show cause on 20-12-76. In their show cause, Mahanth Pandey and p. K. Sinha have stated that no article was ever seized by them or at their instance as alleged by Jainarain Sharma. Mahanth Pandey has denied to have submitted any such report as contained in annexure 7 to the writ application. According to them, Jainarain Sharma filed a petition on 23-8-74 before the Sub-divisional Officer, Biharsharif, claiming himself as the manager of the cold storage for starting a proceeding against Chandeshwar Prasad Singh, Upon that petition, Case No. 539 (M.P.) of 1974 was started. While that application was pending, Jainarain Sharma filed another petition on 7-12-74, claiming himself to be a co-sharer of the cold storage, alleging that Mahanth Pandey went to his residence on 6-12-74 and looted his property worth about Rs. 80,000. Case No. 741 (M.P.) of 1974 was started on the basis of the said application. Both these cases were dispossed of by a common order on 16-4-75 and the proceeding under Section 144, Cr. P. C, was dropped. On 21-12-74, Jainarain Sharma filed a petition before the Chief Judicial Magistrate for release of the articles said to have been seized by the police. Upon this, Case No. 34 (m) of 1974 was started. By an order dated 15-2-75, the police was directed to return the articles if not required in any other case. On 25-2-75, Jainarain Sharma filed a petition for starting a proceeding for contempt of Court as the properties were not returned to him despite Court’s order. On 12-3-75, Mahanth Pandey submitted a report before the Chief Judicial Magistrate stating that no article whatsoever belonging to Jainarain Sharma had ever been seized. That report has been annexed as annexure B to the show cause of Mahanth Pandey. The petition of Jainarain Sharma for starting a contempt proceeding was dismissed on 2-5-75. On 28-10-75, Jainarain Sharma filed another application for the release of his articles. Along with this, he filed some photostat copies of documents and he was directed to produce the original of the said documents. The matter was ultimately disposed of on 13-11-75 by the Chief Judicial Magistrate. Prior to this, Jainarain Sharma had filed a complaint under Sections 307, 322 and 395, I.P.C. against Mahanth Pandey and some others alleging that his property had been looted away. Both, Mahanth Pandey and p. K. Sinha, have denied the allegations made against them about putting any pressure on Jainarain Sharma to withdraw the case or to have ever given any threat to him. It has been further stated that the Sub-divisional Officer, Biharshariff, had never submitted any report on 7-12-74 to the District Magistrate as alleged in the writ application and annexures 1 and 2 of the writ application are forged and fabricated documents. It is not necessary to state the facts stated in the show cause filed by opposite party Nos. 3 and 4, Bindeshwari Prasad and Shyam Narain Prasad, as the application for contempt against them has not been pressed.
7. When Original Criminal Misc. No. 17 of 1976 was being finally heard on 26-7-77, Mahanth Pandey and P. K. Sinha filed the two criminal miscellaneous applications under Section 482, Cr. P. C. praying to recall the order passed in Cr. W.J.C. No. 400 of 1975. The applications were admitted and notice was issued. At the time of admission it was stated on behalf of Mahanth Pandey that annexure 7 of the writ application was not a genuine document. Mahant Pandey denied his signatures on the two photostat copies said to be reports submitted by him to the Chief Judicial Magistrate and the Superintendent of Police, Nalanda. In view of this it was thought necessary to hold a detailed enquiry into the matter.
8. In his application (Criminal Misc. No. 1795 of 1977) Mahanth Pandey has stated that after the receipt of the notice of the writ application he had come to this Court and came to the office of the Advocate-General, who told him that if anything was to be done in that regard he would be informed. As such Mahanth Pandey could not appear while the writ application was being heard. He did not hear anything further from the office of the Advocate-General and thought that there was nothing to be done. It has been further stated that by making false representation of facts and producing certain fabricated documents which remained uncontroverted, Jainarain Sharma got an order passed in his favour. The order in the writ application appears to have been passed on the basis of annexure 7, which was false and fabricated. No property of Jainarain Sharma was ever seized or kept in the custody of the Superintendent of Police, Nalanda. The alleged report submitted on 7-12-74 by the Sub-divisional Officer to the District Magistrate and the report of the Divisional Inspector of Police dated 9-12-74 were also false and fabricated. The rest of the statements made in this petition are only repetition of what has been stated in the show cause filed by Mahanth Pandey in Original Criminal Misc. No. 17 of 1976.
8A. P.K. Sinha, in Criminal Misc. No. 1796 of 1977, has stated that he was under the impression that steps, if any, in the writ case would be taken by his successor Superintendent of Police since he had been transferred from BiharsharifE on 11-8-75. He received a letter from the office of the Advocate-General regarding the case and thereafter wrote a letter to the Superintendent of Police, Nalanda, to send details of the case so that appropriate action could be taken. He tried to contact the law officer concerned in the office of the Advocate-General and was told that the Standing Counsel in charge of the case had gone to Ranchi. As he had been made a respondent in his capacity as Superintendent of Police, he thought that no steps were required to be taken on his part. In these circumstances, he did not appear and the case was decided in his absence. His case also is that the order has been procured by false representation of facts and by enclosing certain fabricated documents. It has been stated that no articles of Jainarain. Sharma were ever seized or kept in custody.
9. In the course of hearing, some witnesses were examined as Court witnesses Five witnesses were examined on behalf of Mahanth Pandey and P.K. Sinha and four on behalf of Jainarain Sharma. A large number of documents were also admitted into evidence. The question for consideration is whether, on the facts and in the circumstances of this case, and upon the materials placed before us, the petitioners Mahanth Pandey and P.K. Sinha have made out any case for recall of our judgment and order passed in Cr. W.J.C. No. 400 of 1975? If not, whether they are guilty of contempt of this Court and, if so, what punishment should be awarded to them?
10. Cr. W.J.C. No. 400 of 1975 was decided on 13-9-76 (Pat). The two criminal miscellaneous applications were filed by Mahanth Pandey and P. K. Sinha on 26-7-77, i.e., after a period of about ten months. According to Article 124 of the Schedule to the Limitation Act, the period for filing an application for a review of a judgment by a Court other than the Supreme Court is thirty days from the date of the decree or order. Thus, both these applications are clearly barred by limitation. There is no prayer in either of these petitions for condoning the delay. Mahanth Pandey, who examined himself as P.W. 2, stated in his evidence that he came to know about the judgment of this Court in the writ case through newspapers. The news was published in the Searchlight, an English daily of Patna, on the 25th of Nov. 1976-After knowing the result of the case through the newspaper, Mahanth Pandey came to the High Court and appears to have discussed the matter with some lawyers and had also met P. K. Sinha. He discussed the matter with some State Counsel as well and met Shri K.N. Sinha, Standing Counsel IV. He admits that he did not take any action thereafter. Thus, even from the date of his knowledge, he kept quiet for about eight months. Similarly, P.K. Sinha also came to know about the judgment when he read about it in the newspaper, according to his own evidence, sometime in the month of Sept. 1976. He too did not take any step until he was noticed to show cause why he should not be proceeded against for contempt of this Court. In my opinion, therefore, both the applications are time-barred.
11. That apart, even on merits neither of them has made out a case for review of our judgment passed in Cr. W. J. C. No. 400 of 1975. P.K. Sinha had received the notice of the writ case while he was posted as the Commandant of B. M. P. 10 at Patna, through a letter which he got from the Advocate-General’s office. On receipt of that letter, he came to the Advocate-General’s office and was informed that the file had been entrusted to Standing Counsel IV. He has stated in his evidence that he received an information from Shri Ganesh Pd. Jayaswal, Advocate, that Standing Counsel IV had gone to Ranchi. Shri Jayaswal wanted him to make some statement of facts, Then he wrote a letter to the Superintendent of Police, Nalanda, for sending information to him about those facts which he did not receive. To a Court question, he stated that he did not receive any acknowledgment from the Superintendent of Police, Nalanda, about receipt of his letter. According to him, he had received the letter from the Advocate-General’s office on the 3rd or 4th of May, 1976. Although in his examination-in-chief he did not state that the Court’s notice had been directly received by him but, on a copy of the notice being shown to him by us, he admitted that the notice had been received in his office at Patna on the 30th of March 1976» That notice was marked M for identification. To another Court question, he admitted that the notice marked M for identification was placed before him by his clerk before he had received the letter from the Advocate-General’s office. In cross-examination, he admitted that he did not take any step in relation to the case in Cr. W.J.C. No. 400 of 1975, before he received the letter from the Advocate-General’s office. After talking to Shri G. P. Jayaswal, he never again visited this Court during the pendency of the writ case. He has stated that he had sent a letter to the Superintendent of Police, Nalanda, by a special messenger with a command certificate. That command certificate was not produced or called for as, it is stated the same must have been destroyed and cannot be produced now, According to him, since it was a personal letter to the Superintendent of Police, Nalanda, it was not entered in any register maintained in the office. He admitted that he did not even send a reminder to the Superintendent of Police, Nalanda. Similarly, Mahanth Pandey (P-W. 2) admitted that he received the notice in the writ case from this Court while he was posted at Hilsa. In Ms evidence, he stated that after receiving the notice, he came to the High Court sometime in Feb. 1976 and contacted somebody in the Advocate-General’s office. There, he was informed that he should come again when called for by the said office for filing a counter-affidavit. He further stated that he did not recollect the name of the assistant of the office of the Advocate-General whom he met that day. He again came to the High Court after he learnt the result of the writ case through newspapers. He had received the notice along with a copy of the writ application on 26-2-76. The endorsement on the notice was marked M/l for identification. P.K. Sinha and Mahanth Pandey are not laymen. The former is a Superintendent of Police and the latter is an officer-in-charge of a police station. It cannot be said that they did not know the consequences of their not appearing hi a case or not answering the personal allegations made against them. Both of them admitted that they had received a copy of the writ application together with annexures along with the notice. Serious personal allegations had been made in the writ application against these two police officers. It had been alleged that without any authority of law Mahanth Pandey had seized the properties of Jainarain Sharma on the orders of P. K. Sinha, who was the Superintendent of Police posted there. It was further alleged that these two police officers were acting to the tune of late B. P. N. Shahi, who was a Deputy Inspector General of Police and interested in his relation Chandeshwar Prasad Singh. Matters were such that only these three police officers were in a position to enlighten us about them. As was observed by the Supreme Court in the case of R.P. Kapur v. Pratap Singh Kairon , these officers owed a duty to this Court to file an affidavit stating what the correct position was, so far as they were concerned. In case of such nature and in view of such personal allegations, it was the bounden duty of the officers concerned to tell the Court what the real position was. Unfortunately, these two gentlemen did not consider it worthwhile to refute these allegations even though they had sufficient notice of the fact. In S. Partap Singh v. State of Punjab , it was observed that allegations of a personal character could be repelled only in two ways, First, if the allegations were wholly irrelevant, and even if true, would not afford a basis upon which the petitioner would be entitled to any relief, they need not even be answered and the petitioner would derive no benefit from respondents not answering them. If they were true and made out by acceptable evidence, they could not be ignored as irrelevant. If they were relevant, in the absence of their intrinsic improbability, the allegations could be countered by documentary or affidavit evidence which would show their falsity. In the absence of such evidence, they could be disproved only by the party against whom the allegations were made, denying the same on oath. As there were serious personal allegations made against these two police officers, and there were several matters of which they alone could have personal knowledge, they alone could have denied it; but, as stated above, they did not answer the Court’s summons. It is not their case that either they were misled by anybody or did not understand the import of the allegations. If they chose not to appear and file any affidavit in reply to the allegations made against them in the writ application, they must thank themselves.
11-A. The main ground which is sought to be made out in the two criminal miscellaneous applications is that the judgment in the writ case was procured by making false representation of facts and by enclosing certain fabricated documents. The writ case was mainly decided on the basis of annexure 7 which remained uncontroverted. It is now being stated in the two criminal miscellaneous applications that annexure 7 to the writ application is a fabricated document. If it was so, it was all the more important for them to state the facts by filing an affidavit in the writ case, but they did not do so, Annexure 7 has been marked X/2 for identification in Criminal Miscellaneous No. 1795 of 1977. The records of Case No. 34 (MP) of 1974 had been called for in the writ case from the court of Chief Judicial Magistrate, Biharsharif, Nalanda, The original of annexure 7 of the writ case (marked X/2 for identification) was received in this Court along with the records of Case No. 34 (MP) of 1974. After the disposal of the writ case, the records were sent back and were again called for in Original Criminal Misc. No. 17 of 1976. The above document has again been received along with the records of the case. On the 26th of July, 1977, it was submitted on behalf of Mahanth Pandey that annexure 7 of the writ case was not ,a genuine document. Mahanth Pandey also denied some signature in the photostat copies of some other documents. It was in that context that we decided to hold a detailed enquiry into the matter. Janardan Prasad, A.P.P. Grade II, Nalanda, identified this document (annexure 7 to the writ application) and proved his endorsement on it which was marked Exhibit 1/2. He further stated that this document contained the signature of Mahesh Pandey. The signature of Mahanth Pandey pointed out by him was marked Exhibit B. The admitted signatures of Mahanth Pandey were called for from the Superintendent of Police, Nalanda, by our order dated 29-7-77. Some documents were received purporting to bear the signature of Mahanth Pandey. On 10-10-77 (vide order No. 4), on being questioned, Mahanth Pandey admitted that the signature marked Exhibit B on the original copy of annexure 7 of the writ application (marked X/2 for identification) was his signature. He, however, stated that the other writings on that document were not in his pen. It was submitted on his behalf that those writings had been superimposed on that paper. He had denied his signature Exhibit B/a on another document and that was sent for comparison with his admitted signature to the Examiner of questioned documents, Government of India. I do not think it necessary to dwell upon that matter as the signature on the original copy of annexure 7 was admitted by Mahanth Pandey. It is really annexure 7 to the writ application with which we are concerned in these cases because that formed the basis of our decision in the writ case (Cr. W. J. C. No. 400 of 197S). In his deposition in Court, Mahanth Pandey did not even state that the original of annexure 7 is a forged or fabricated document or that the writings in that document were superimposed. It was for him to state so in his evidence and bring on record sufficient evidence to prove the fact but he did not do either. In such a state of evidence, it is not possible to hold that the original of annexure 7 (marked X/2 for identification) is either forged or fabricated. I cannot arrive at any such conclusion merely on the basis of an oral submission made in Court by learned Counsel in that behalf, without there being any evidence produced in support of that submission,
12. In civil cases, a defendant has several remedies to get an ex parte decree annulled. He may apply for setting aside the ex parte decree under Order IX, Rule 13, Civil P. C. or apply for a review or file an appeal from the decree or institute a suit on the ground of fraud. In the present case, as stated above, the petitioners seek to avoid the judgment of this Court passed in Cr. W.J.C. No. 400 of 1975 as, according to them, it has been procured by fraud. It is not their case that they were prevented from appearing in the writ case or that notices were not served upon them. They have not also shown sufficient cause for recalling our judgment. In such a situation, an application for review is not an appropriate remedy for them. A suit lies to set aside an ex parte decree on the grounds of fraud. Onus lay on the party concerned to show that there was some fraud in relation to the proceedings of the Court. On the materials placed before us, it is difficult for me to hold that any fraud was played upon this Court in getting the judgment in the writ case. However, if the petitioners still feel that the judgment of the Court was procured by fraud, it will be open to them to seek their remedy, if any, in accordance with law but, so far as the present applications for review are concerned, I do not feel satisfied that any case has been made out for allowing the prayer.
13. I shall now revert back to Original Criminal Miscellaneous No. 17 of 1976. I have already stated in detail the statements made in the show cause petitions filed by Mahanth Pandey and P. K, Sinha. Not only that they did not choose to appear in the writ case in response to the notice issued to them by this Court but they also exhibited their scant regard for the judgment and order of this Court after they came to know about it. In our judgment in the writ case, I had observed:
The police is expected to safeguard the lives and properties of the citizens but in the present case they seem to have lost all proportions and acted in flagrant violation of the rule of law and the norms of a civilized society. This act of vandalism reminds one of the days of anarchy where only the might was right. Such things cannot be permitted or tolerated in a civilized society where every citizen has full protection of the law. A person however high-up he may be must follow the dictates of law.
I had further observed that it was reprehensible that Mahanth Pandey had been treating the Court with contempt. He had been asked by the Chief Judicial Magistrate once to show cause why action should not be taken against him for violating the Court’s orders. He did not show any cause and instead submitted a report that articles would be returned “after obtaining such instruction from proper authority” (meaning thereby proper police officers). Mahanth Pandey and P. K. Sinha do not seem to have viewed our observations in the correct perspective. As highly placed police officers, they were expected to show due regard to the Court. After all, in a democratic set up Court’s order has to be implemented with the aid of civil and police authorities. This Court is not expected to raise its own police force to get its orders implemented. Even if they thought that the judgment of this Court in the writ case was obtained by fraud or was illegal and not to their liking, they had no choice or right to violate the same if it was passed by an authority having jurisdiction to pass it; even if subsequently they could persuade this Court that there was a latent defect in the said order. They had no right to judge the matter themselves, much less any right to violate it with impunity. The police officers are supposed to enforce the law. If they themselves cease to have regard for law, the future of our organised life is dark. If they had any respect for this Court’s order and if they thought that annexure 7 of the writ application was a forged or fabricated document, they should have immediately come to this Court and assisted us; but, from the very beginning, their attitude has been one of looking at the Courts with disregard. If I may say so, this is a very ominous sign and, if it goes unpunished, it will only spell disaster to the normal working of our democratic system. Even if it was found that annexure 7 of the writ case was forged and fabricated and the judgment was procured by fraud, they cannot escape. If it were so, our judgment could be only voidable and not void ab initio. Until the same was set aside in appeal or reviewed and recalled by us, it remains to be a good and valid judgment. The contemners could not themselves sit in appeal over it. After knowing about the judgment and having been requested by Jainarain Sharma to return the seized articles, it was their duty to return the articles forthwith. Instead, they threatened Jainarain Sharma and took him into custody. No doubt they have denied these allegations in their show cause, but on the facts and in the circumstances of this case, it is difficult to accept their denial. I would, therefore, hold both P. K- Sinha and Mahanth Pandey guilty of committing contempt of this Court.
14. In the result, Criminal Miscellaneous Nos. 1795 and 1796 of 1977 filed by Mahanth Pandey and P. K. Sinha are dismissed. They are found guilty for committing contempt of this Court and are sentenced to imprisonment till the rising of the Court. The rule issued in Original Criminal Miscellaneous No. 17 of 1976 is thus made absolute against them. The rule issued against Bindeshwari Prasad and Shyam Narain Prasad, however, is discharged.
Shambhu Prasad Singh, J.
15. I agree.