Judgment :- 1. The defendant in a suit for arrears of rent and arrears of current charges is the appellant. As regards arrears of current charges there is no challenge in this appeal. 2. The first defendant was admittedly a tenant of the plaintiffs. He was evicted as per an order of the Rent Controller on 14-2-1979. The plaintiffs have claimed arrears of rent for the periods from 25-3-1977 to 23-2-1979. They have claimed rent at the rate of Rs. 312. 50. Originally the monthly rent of the building was Rs. 200/-. It was enhanced to Rs. 245/-in the year 1963. Further, it was enhanced to Rs. 255/-with effect from 25-6-1969 and then from 25-7-1969, the rent was raised to Rs. 312.50. 3. The defendant contended that the plaintiff is entitled to claim only the fair rent and in the suit fair rent has to be determined and on the basis of fair rent no amount is due to the plaintiffs. The trial court determined the fair rent at Rs. 293.25. The trial court decreed the suit on the basis of the said fair rent. No adjustment was given to the defendant. The defendant filed an appeal. The appellate court considered the question afresh and found that the defendant is entitled to an adjustment for a short period. The appellate court said that the defendant can claim adjustment only for three years prior to the claim made for fair rent in the written statement. The written statement was filed on 16-8-1979. The appellate court found that the defendant is entitled to get a refund of the excess amount paid for the period of three years prior to the filing of the written statement, i. e. he is entitled to the refund or adjustment of the excess amount paid only after 16-8-1976. The excess amount paid after 16-8-1976 was calculated and found that the defendant has paid for seven months at the rate of Rs. 312.50 and so, the defendant is entitled to get refund or adjustment of Rs. 154/-. The suit was decreed accordingly. Now, the plaintiffs have filed a cross objection stating that the defendant is not entitled to get any adjustment or refund of the excess amount paid over and above the fair rent. 312.50 and so, the defendant is entitled to get refund or adjustment of Rs. 154/-. The suit was decreed accordingly. Now, the plaintiffs have filed a cross objection stating that the defendant is not entitled to get any adjustment or refund of the excess amount paid over and above the fair rent. The defendant has filed the appeal claiming that he is entitled to get adjustment from the very beginning, namely, from 25-7-1969, the date on which the rent was fixed at the rate of Rs. 312.50. 4. Both the counsel argued the case at great depth. The relevant provision governing the question is S.8 of the Kerala Buildings (Lease and Rent Control) Act hereinafter referred to as the 'Act'. I feel in the circumstances of the case that I should quote the section in extenso. S.8 of the Act reads thus: "S. 8: Landlord not to claim or receive anything in excess of fair rent or agreed rent -- (1) Where the Rent Control Court has determined the fair rent of a building - (a) the landlord shall not claim, receive or stipulate for the payment of (i) any premium or other like sum in addition to such fair rent, or (ii) save as provided in S.6 or S.7, anything in excess of such fair rent: Provided that the landlord may receive, or stipulate for the payment of an amount not exceeding one month's rent, by way of advance: (b) Save as provided in clause (a), any premium or other like sum of any rent paid in addition to, or in excess of such fair rent, whether before or after, the commencement of this Act, in consideration of the grant, continuance or renewal of the tenancy of the building after such commencement, shall be refunded by the landlord to the person by whom it was paid or at the option of such person, shall be otherwise adjusted by the landlord: Provided that where before the determination of the fair rent, rent has been paid in excess thereof, the refund or adjustment shall be limited to the amount paid in excess for a period of three years immediately before the institution of any proceedings for such determination. (2) Where the fair rent of a building has not been determined under S.5 - (a) notwithstanding anything contained in any contract, the rent payable for the building in case it is a building falling under clause (i) or clause (ii) of the proviso to sub-s. (2) of S.5 shall be, where the property tax or house tax has been fixed by the local authority, the maximum rent that may be fixed by the Rent Control Court as provided for in sub-s. (2) of S.5, or the agreed rent whichever is less, and in cases where no property tax or house tax has been fixed for the building or where it has been fixed not on a rental basis, the agreed rent: (b) the landlord shall not claim, receive or stipulate for the payment of, any premium or other like sum in addition to the rent payable under clause (a) for a building falling under clause (i) or.clause (ii) of the proviso to sub-s. (2) of S.5. and the agreed rent in the case of any other building: Provided that the landlord may receive or stipulate for the payment of, an amount not exceeding one month's rent, by way of advance; (c) save as provided in clause (b) any sum paid in excess of the rent payable under clause (a) in the case of a building falling under clause (i) or clause (ii) of the proviso to sub-s. (2) of S.5, and the agreed rent in the case of any other building, in consideration of the grant, continuance or renewal of the tenancy of the building after the commencement of this Act, shall be refunded by the landlord to the person by whom it was paid or, at the option of such person, shall be otherwise adjusted by the landlord. (3) Any stipulation in contravention of sub-s. (1) or sub-s.(2) shall be null and void." 5. S.8 (1) of the Act deals with the question where the rent control court has determined the fair rent of a building. Sub-s. (2) of S.8 deals with the question of fair rent of a building which has not been determined under S.5. S.5 of the Act deals with the fixation of fair rent for a building. For fixing the fair rent the enactment has given several parameters. Sub-s. (2) of S.8 deals with the question of fair rent of a building which has not been determined under S.5. S.5 of the Act deals with the fixation of fair rent for a building. For fixing the fair rent the enactment has given several parameters. The provision grants the power to the Rent Control Court on application of the tenant or landlord of a building, to fix the fair rent for such building after holding an enquiry as contemplated under S.5 of the Act. 6. Turning to S.8 again, it is worthy to note that under S.8 (1) a proviso is added to it. It is made clear that where before the determination of the fair rent, rent has been paid in excess thereof, the refund or adjustment shall be limited to the amount paid in excess for a period of three years immediately before the institution of any proceedings for such determination. From the above proviso, it is clear that in a case where the tenant wants to have the fair rent fixed the excess rent that can be adjusted will be confined to three years prior to the date of the institution of the proceedings for such determination. This provision is. absent in the case of S.8 (2) of the Act. By virtue of S.8 (2) (c) it is provided that any sum paid in excess of the rent payable under clause (a) in the case of a building falling under clause (i) or clause (ii) of the proviso to sub-s. (2) of S.5, and the agreed rent in the case of any other building, in consideration of the grant, continuance or renewal of the tenancy of the building after the commencement of this Act, shall be refunded by the landlord to the person by whom it was paid or," at the option of such person, shall be otherwise adjusted by the landlord. 7. Learned counsel for the appellant-tenant submits that there is no limitation placed for effecting an adjustment of over payment made by the tenant in excess of the fair rent and so, in this case, the tenant has paid over payment from 25-7-1969 and so, he is entitled to get adjustment of that over payment in the suit instituted by the landlord. 8. 8. Learned counsel for the respondents submitted before me that a practical and a meaningful interpretation has to be given to Clause.8(2) (c). He submitted before me that the clause has to be confined to the refund or adjustment of any premium or consideration paid by the tenant and it has nothing to do with the excess payment made by the tenant over and above the fair rent. It is difficult for me to accept this contention because it is very clearly stated in S.8(2) (c) that "any sum paid in excess of the rent payable under clause (a) shall be refunded by the landlord. Clause (a) provides for the fair rent and so, from a reading of S.8(2) (c) in its totality, it is plain and clear that the tenant has got the right to get refund or adjustment of any excess amount paid over and above the fair rent. The appellate court has also found that the excess amount paid over and above the fair rent is liable to be adjusted; but the appellate court has confined it to three years prior to the filing of the written statement. The question is whether the finding is correct or not. Of course, counsel for the landlord submitted that no adjustment is possible in this case. Since at the time when the suit is instituted there is no landlord-tenant relationship existing, the suit is one for arrears of rent due from the defendant. It has to be viewed as a debt due to the plaintiff from the defendant. So, there is no question of adjustment possible in this case. Counsel submitted that the adjustment contemplated is an adjustment of the rent payable in future and he submitted that the words used are refund and adjustment. Refund is an amount which the tenant can claim from the landlord and an adjustment is an amount which can be adjusted for future payment of rent by the tenant. Making this distinction, the learned counsel submitted that in this case, no question of adjustment is possible because the tenancy is not surviving. 9. Refund is an amount which the tenant can claim from the landlord and an adjustment is an amount which can be adjusted for future payment of rent by the tenant. Making this distinction, the learned counsel submitted that in this case, no question of adjustment is possible because the tenancy is not surviving. 9. Counsel for the appellant referred me to the decision reported in Padmanabha Pillai v. Narayana Pillai Natarajan (1969 K.L.J. 614) and has drawn my attention to page 616, where V.R. Krishna Iyer, J., said thus: "How can we apply S.8(2) (a) to a proceeding under S.5 when the former declares its applicability only to cases where such fair rent has not been fixed? Again the scheme of S.8(2) (a) is as follows: Supposing no fair rent has been fixed and the building is one falling under clause (i) or clause (ii) of the proviso to sub-s. 2 of S.S, the landlord can collect nothing more than the agreed rent or the maximum rent that may be fixed by the Rent Control Court as provided for in sub-s. 2 of S.S. That maximum is 15% over the monthly rental on the basis of which the property tax or house-tax for the building has been fixed. This is really a protection to the tenant in cases where the municipal tax has been computed on a low monthly rent i.e. lower than the actual rent collected by the landlord. In such cases, notwithstanding the non-fixation of fair rent, the tenant can refuse to pay even the contract rate and can choose to pay the maximum that can possibly be fixed adopting the formula of S.5(2), if that happens to be less than the agreed rent". Though the landlord insisted that what the quantum tenant is bound to pay in a suit for arrears of rent is the accumulated arrears of agreed rent the trial court has decreed the suit on the basis of fair rent and not on the basis of agreed rent. The dictum which I have quoted from 1969 K.L.J. 614 may not be of much help to resolve the question. Counsel submitted before me that when a question of adjustment is claimed, no question of application of limitation comes into play. An application of limitation is intended for barring certain action to be initiated in a court of law. The dictum which I have quoted from 1969 K.L.J. 614 may not be of much help to resolve the question. Counsel submitted before me that when a question of adjustment is claimed, no question of application of limitation comes into play. An application of limitation is intended for barring certain action to be initiated in a court of law. Counsel submitted that the section has given a right for adjustment without limiting it to any period and so, no question of putting a period of limitation for the purpose of adjustment is contemplated by the section. Counsel referred me to the decision reported in K.G.U. Trust v. Shri Ram Chandraji Mandir (A.I.R. 1978 S.C. 287). There, the question arose whether an action for eviction can be avoided only by paying the entire amount of rent due including rent which has become time barred. In the decision reported in A.I.R. 1978 S.C. 287, the S.C. said thus: "the statute has conferred a benefit on the tenant to avoid a decree for eviction by complying with the requirement of S.20(4). If he fails to avail himself of the opportunity and has not paid the rent for not less than four months and within one month from the date of service upon him of a notice of demand, the landlord under S.20(2) would be entitled to an order of eviction. Still the tenant can avail himself of the protection by complying with the requirements of S.20(4). The words "entire amount of rent due" in S.20(4) would include rent which has become time-barred". The Supreme Court has referred to a decision of the Court of Appeal in Curwen v. Milburn (1889) 42 Ch D. 424 where Cotton, L.J. said that "the statute barred debts are dues, though payment of them cannot be enforced by action". In the decision reported in Bombay Dyeing and Manufacturing Company Ltd. v. State of Bombay (A.I.R. 1958 S.C. 328) it was held that "the statute of limitation only bars the remedy but does not extinguish the debt. S.28 of the Limitation Act provides that when the period limited to a person for instituting a suit for possession of any property has expired, his right to such property is extinguished. S.28 of the Limitation Act provides that when the period limited to a person for instituting a suit for possession of any property has expired, his right to such property is extinguished. And the authorities have held -- and rightly, that when the property is incapable of possession as for example, a debt, the section has no application, and lapse of time does not extinguish the right of a person thereto. Under S.25(3) of the Contract Act, a barred debt is good consideration for a fresh promise to pay the amount". In the decision reported in Ram Nandan Sharma v. Maya Devi (A.I.R. 1975 Pat. 283) Untwalia CJ.Jobserved that "there is a catena of decisions in support of what has been said by Tek Chand, J., in First National Bank v. Sant Lal (A.I.R. 1929 Punjab 328 at p.330 Para.12) that the Limitation Act with regard to personal actions, bars the remedy without extinguishing the rights. There can be absolutely no controversy on this well accepted principle. 10. Counsel for the respondents submitted before me that the suit is for arrears of rent and the court should treat it as a recovery of the debt due from the defendant and the defendant can only make a counter claim in respect of the amount claimed. Art.52 of the Limitation Act governs a suit for arrears of rent. The starting point of limitation is when arrears of rent become due and the suit is within the time. Counsel submits that the money paid as excess amount over the fair rent is only an amount paid and received and that can be realised if the party wants to realise it by filing a suit and that suit is governed by Art.24 of the Limitation Act. The counsel also referred me to the decision reported in Hari Shankar v. Kailasho Devi (A. I. R.1987 Punjab 47). Of course, in this case a tenant who paid excess rent filed a suit for recovering the amount paid. The Division Bench held that "the excess amount of rent paid by the tenant is recoverable by him and an action by way of suit is not barred. Of course, in this case a tenant who paid excess rent filed a suit for recovering the amount paid. The Division Bench held that "the excess amount of rent paid by the tenant is recoverable by him and an action by way of suit is not barred. In the ejectment proceedings brought by the landlord the tenant can by filing a counter-claim seek determination of the rate of rent and the Rent Controller has the jurisdiction to determine the same and direct recovery of the excess amount of rent if any tendered by the tenant to the landlord. But it is the right of the tenant either to make a counter-claim under O. VIII, R.6-A to 6-G of the Civil P. C. or to file an independent suit". Readings. 8 (1) and (2) together I find no reason for not making a provision like the proviso to S.8(1) of the Act, wherein it is provided that only the excess amount paid for three years can be refunded or adjusted. In this case, the counsel has pointed out that an adjustment is possible and an adjustment without any time limit is contemplated under S.8 (2) (c) of the Act. It is a question whether an adjustment by the landlord is possible under S.8 (2) of the Act after relationship of landlord and tenant ceased to exist. Counsel submitted that the adjustment in the context has to be considered as an adjustment for the future payment of rent. Otherwise even without a suit for refund proceedings, the landlord will be compelled to make payment to the tenant. If the adjustment is confined to future payment of rent, in the present case, no application of the section is possible. No adjustment is contemplated in a case where the landlord and the tenant relationship ceased and when the suit is filed for recovery of the arrears of rent, that is only a suit for arrears of debt. But what is the debt due has to be determined on the basis of the fair rent, and only the arrears calculated on the basis of fair rent alone can be realised. The trial court has done so. The appellate court has given an adjustment for a shorter period I do not think that what the appellate court has done is correct. The trial court has done so. The appellate court has given an adjustment for a shorter period I do not think that what the appellate court has done is correct. In the result I have to restore the judgment and decree of the trial court and the appeal is allowed. In the context, the cross objection is allowed.