JUDGMENT 1. - This second appeal under section 100 of the Code of Civil Procedure has been filed against the judgment and decree dated 12th November, 1992 passed by the Additional District & Sessions judge No.4, Jaipur City Jaipur in Civil Regular First Appeal No.53/1988 reversing the judgment and decree dated 22nd February, 1978 passed by the Additional Munsiff Magistrate No.2, Jaipur city, Jaipur in Civil Suit No.683/1973. 2. Briefly stated, the facts for the disposal of the present second appeal are that the respondent-plaintiff Narain Prasad filed a suit for permanent and prohibitory injunction before the trial court wherein challenge was made to the notification dated 24.6.1973 by which two posts of Legal Assistants sought to be filled-in by direct recruitment were advertised on the ground that they were to be filled-in 50% by promotion and 50% by direct recruitment and the plaintiff-respondent was qualified and fulfilling all the requirements, therefore, the post of Legal Assistant was required to be filled by promotion. It was prayed that the defendant-appellant be restrained from filling up two posts of Legal Assistants by direct recruitment and against one of those posts the plaintiff be first promoted. It was also prayed that the defendants be further restrained from conducting selection/appointment on two posts of Legal Assistants according to the advertisement dated 24.06.1973 till 50% of the posts are filled up by promotion. The suit was filed on 28.09.1973. The plaint was amended and a declaration was sought in relation to the relief. 3. In the written statement filed, it was the stand of the appellant that the appellant is a Sahakari Bhoomi Vikas Bank Limited registered with the Registrar, Co-operative Societies and a notice was required under section 143 of the Rajasthan Co-operative Societies Act, 2001 (in short to be referred as, 'the Act') which was not served on the Registrar. It was also the stand that the posts were filled up by direct recruitment on 28.9.1973 itself by appointment of defendant Krishna Murari Sharma and Avdhesh Narain Mishra. 4. Learned trial court on the basis of the pleadings of the parties framed six issues including relief and after recording evidence and hearing final submissions dismissed the suit vide judgment and decree dated 22.02.1978. 4. Learned trial court on the basis of the pleadings of the parties framed six issues including relief and after recording evidence and hearing final submissions dismissed the suit vide judgment and decree dated 22.02.1978. The plaintiff respondent having felt aggrieved preferred first appeal which was allowed by the appellate court and the appellate court reversed the finding of the trial court vide its judgment and decree dated 12.11.1992. Hence, the present second appeal has been filed. 5. On 28.05.1993, this court while admitting this second appeal framed following substantial questions of law for consideration: "1) Whether respondent No.l, who was working only as a Clerk, could claim to be eligible to be promoted to the post of Legal Assistant, having never done any legal work in the office whereas the direct recruits for the said post are required to have five years' experience at the Bar as an advocate? 2) Whether the suit filed by respondent No.l plaintiff was not maintainable without a notice under Section 143 of the Rajasthan Co-operative Societies Act having been served on the Registrar and whether such notice could be waived by the appellant? 6. It has been the contention of the learned counsel that in the instant case the learned appellate court has not properly appreciated the evidence while reversing the finding on issue nos. 1 and 2 recorded by the trial court in as much as the trial court found that the plaintiff was not having requisite qualification and experience for the post which was advertised. It has also been the contention that the learned appellate court has not properly appreciated the evidence in relation to issue no.3. it is also contended that the suit itself was not maintainable for want of notice under section 143 of the Act to the Registrar, Co-operative Societies in view of the decision rendered by this court in the case of Narain v. Adarsh Sarvajanik Nirman Sahakari Samiti Ltd., 1979 ILR 633. According to the learned counsel section 143 of the Act is mandatory and its compliance was must. It is also contended that in the present matter, admittedly, no notice was given to the Registrar and even the defendant-appellant or anybody else, on behalf of the Registrar Co-operative Societies could not have waived the requirement of notice. 7. According to the learned counsel section 143 of the Act is mandatory and its compliance was must. It is also contended that in the present matter, admittedly, no notice was given to the Registrar and even the defendant-appellant or anybody else, on behalf of the Registrar Co-operative Societies could not have waived the requirement of notice. 7. On the other hand, it is contended that the learned appellate court has properly appreciated the matter and recorded its finding, therefore, the appeal is liable to be dismissed. 8. I have considered the submissions made before me. 9. Now, I propose to decide the substantial questions of law framed by this court.Re. Question No.l:It is to be seen that the plaintiff who is an employee of the appellant was appointed as LDC. The appellant is a co-operative society registered under the Co-operative Societies Act. The plaintiff was made permanent on 26.11.1966 and on 26.10.1968 he was promoted on the post of Assistant Accountant. The order making promotion on the post of Assistant Accountant was set aside by the Labour Court on 03.08.1971. The plaintiff obtained law degree in the year 1972 from the University of Rajasthan. To fill up two posts of Legal Assistants by direct recruitment, an advertisement was published in Rajasthan Patrika on 24.06.1972. The plaintiff after seeking amendment in the relief clause' sought relief that one post was required to be filled-in by promotion. The stand of the appellant before the trial court in the written statement was that the plaintiff was having no experience of legal work. It was also the stand that it was not a condition precedent that 50% posts of legal assistants should be filled by promotion and since the plaintiff was working on the post of LDC and thereafter he was to be promoted on the post of Assistant and next promotion was of legal assistant. The learned trial court while considering issue nos. 1 and 2 recorded its finding to the effect that for the post of legal assistant five years experience as practicing advocate was must and further the rules also prescribed that from amongst the employees of the society, in the absence of suitable candidates, the posts could be filled up by direct recruitment. 1 and 2 recorded its finding to the effect that for the post of legal assistant five years experience as practicing advocate was must and further the rules also prescribed that from amongst the employees of the society, in the absence of suitable candidates, the posts could be filled up by direct recruitment. The learned appellate court reversed the finding on issue no.l without discussing the rules in its proper perspective because the rules of the appellant society particularly rule 10 states that in the absence of eligible candidates, recruitment was permissible from direct recruitment on the post of legal assistant. In this regard, the trial court has properly appreciated the matter and considered the statement of witnesses, therefore, in the absence of proper reasoning, the finding recorded by the trial court on issue no.l was not required to be reversed. Thus, it appears from the finding recorded by the trial court that it has properly appreciated the matter and recorded its finding that in the absence of eligible employees in the society, direct recruitment was permissible even on the posts meant for promotees and this finding has been reversed by the appellate court in a cursory manner. The appellate court, thus, committed illegality and rather misread the evidence and the rules in this regard, therefore, the finding recorded by the appellate court on issue nos. 1 and 2 is required to be set aside and is hereby set aside and that of learned trial court is maintained as the plaintiff-respondent was not having requisite experience for the post advertised by the appellant. 10. In view of above discussion, answer to the question no.l is that the appellant at the relevant time was working as clerk and was not having legal experience for the advertised post.Re. Question No.2:It is not in dispute that section 143 of the Act prescribes that before filing the suit against the society registered under the Co-operative Societies Act, a notice is must. In the instant case, it appears that notice to the appellant was given but no notice to the Registrar, Co-operative Societies was given and this position has not been denied. As regards mandatory requirement and the competence to waive the requirement of law is concerned, that matter has already been settled by this court in the case of Narain (supra). In the instant case, it appears that notice to the appellant was given but no notice to the Registrar, Co-operative Societies was given and this position has not been denied. As regards mandatory requirement and the competence to waive the requirement of law is concerned, that matter has already been settled by this court in the case of Narain (supra). In the above case, a notice under section 143 of the Act was not given to the Registrar, Co-operative Societies and defendant in the suit did not press the issue but before the appellate court an argument was raised regarding mandatory nature of section 143 of the Act and the appellate court recorded its finding that a notice under section 143 of the Act was mandatory in nature and in the absence of consent of the Registrar no third party could waive the requirement of law as envisaged under section 143 of the Act. The matter came before this court and this court considering several decisions of various High Courts and the Hon' ble Supreme Court has held that failure on the part of the defendant to raise an objection regarding want of notice could not lead to the conclusion that the Registrar has waived the service of the requisite notice. A notice under section 143 of the Act is required to be given to the Registrar, Cooperative Societies and it is he who in fact could waive requirement of such a notice. There can be no waiver of the notice by implication merely because a cooperative society has failed to take an objection in the written statement about the maintainability of the suit or as in the present case, even after the objection was taken, an issue was framed and same was not pressed. It is not the plaintiff's case that a notice as required under section 143 of the Act was given to the Registrar, Co-operative Societies and as the requisite notice was given, such a notice prevented the court from taking cognisance of the dispute. The mandatory requirement of section 143 of the Act has not been complied with in the present case and as such the suit is clearly barred. 11. The mandatory requirement of section 143 of the Act has not been complied with in the present case and as such the suit is clearly barred. 11. In view of the above pronouncement made by this court and also in view of the admitted position of facts, there remains no doubt in my mind that no notice was given to the Registrar, Co-operative Societies but in fact notice was given to the defendant-appellant. In the present case, a specific issue was made regarding maintainability of suit and non-compliance of the provisions of section 143 of the Act but the issues were not pressed by the defendant-appellant, therefore, the issues were decided against the defendant-appellant by the trial court. The requirement of notice under section 143 of the Act is mandatory in nature and cannot be waived even if the defendant appellant did not press this issue before the trial court. This issue being legal issue prevents the court from taking cognisance of the dispute. The suit itself was not maintainable. It is to be seen that the respondent-plaintiff has retired long back and even the persons who were appointed by direct recruitment have also retired. It is also important to be noticed that the plaintiff-respondent subsequently took all promotions in service, therefore, the present matter more or less has become in-fructuous. 12. In view of the foregoing discussion, answer to the question no.2 is that in the absence of notice to the Registrar, Co-operative Societies to file suit against the appellant, the suit was not maintainable. 13. In view of the foregoing discussion and answers to the substantial questions of law framed by this court, the appeal requires to be accepted. 14. Hence, the appeal is allowed and the judgment and decree passed by the appellate court is set aside and that of the trial court is restored. No order as to costs.Second Appeal Allowed. *******