( 1 ) THIS revision petition at the instance of the landlord arises under the Rent Control Act. The landlord filed a petition for eviction on the ground of wilful default and also material alterations in the premises. The rent Controller ordered eviction. Aggrieved by the said order the tenant filed the appeal. On appeal the lower appellate court found that [there is no wilful default and there is also no material alteration and reversed the order of the Rent Controller. The landlord filed this revision petition. It may be stated that during the pendency of the revision the tenant died and his legal representatives were brought on record and the premises let out are non-residential.

( 2 ) THE learned counsel for the petitioner-landlord at the cutset contended that on the death of the tenant of a non-residential premises, the tenancy comes to an end and the legal heirs cannot be considered as tenants and it is further contended that the order of the lower appellate Court is not based upon proper evidence and circumstances. The learned counsel for the respondent contended that the statutory tenant takes in the legal representa- tives of all tenants and as such the legal representatives should be considered as tenants and the order of the lower appellate court based upon an appreciation of totality of circumstances is sustainable.

( 3 ) THE definition of tenant in Section 2 (ix) of the A. P. Buildings (Lease, Rent and Eviction) Control Act is as follows:" tenant means any person by whom or on whose account rent is payable for a building and includes the surviving spouse, or any son or daughter, of a deceased tenant who had been living with the tenant in the building as a member of the tenant s family upto the death of the tenant and a person continuing in possession after termination of the tenancy in his favour, but does not include a person placed in occupation of a building, by its tenant or a person to whom the collection of rents or fees in a public market, cart-stand or slaughter house or rents for shops has been formed out or leased by a local authority".

( 4 ) THE learned counsel for the petitioner in support of the contention that the legal representatives cannot step into the shoes of the deceased tenant relied upon the decision of this court in Mootha Venkateswara Rao vs. Budharaju Narayanaraju wherein Gangadhara Rao, J,, held that the tenant as defined in the Act includes legal representatives and this inclusive definition is confined to residential premises only as the question of legal representatives visualised under the definition living with the deceased tenant arises in residential premises only. In support of this view the learned judge relied upon the decisions of the Supreme Court reported in Ganpat vs. Sashikant and also J. C. Chatterjee vs. S. K. Tandon. The learned counsel for the respondent says that the decision in Ganpat vs. Sashikant (supra} is overruled by the subsequent decision of the Supreme Court in Gain Devi vs. Jeevan kumar and therefore that decision in Mootha Venkateswara Rao vs. Budharaju Narayanaraju (supra) is no longer good law.

( 5 ) AT the outset it is necessary to refer to Ganpat vs. Sashikant (supra) wherein the question whether the heirs of deceased tenant are entitled to protection of the Act in respect of non-residential premises in view of the definition under Section 5 (11) (c) of the Bombay Rents, Hotel and lodging House Rates Control Act. On consideration of the definition in similar terms the Supreme Court held that it is obvious that the intention of the Legislature in giving protection to a member of the family of the tenant residing with him at the time of his death was to secure that on the death of the tenant, them member of his family residing with him at ths time of his death is not thrown out and this protection would be necessary only in case of residential premises and in this view the tenant doss not taks in the legil representatives in respect of no