ORDER : Mr. Ravi R. Tripathi, J. The Court is conscious of the fact that procedure is always prescribed so as to serve the ends of justice. There cannot be a procedure which if followed is going to deprive the party of the justice. 2. What is challenged in this petition is an order passed by the Intellectual Property Appellate Board, hereinafter referred to as 'I.P.A.B.' for short, in Misc. Petition No.70 of 2007 in ORA/52/2007/TM/AMD dated 19.3.2008. 3. The facts of the case are that present respondent No.2 filed rectification application, a copy of which is produced at Annexure C, page 30. The title of the application reads as under: "Application for the removal of trade mark from the register or rectification of the register under Sections 47/57/125 of the Trade Marks Act, 1999." From the papers on record, it is not found as to on which date this application was filed. The application is accompanied by an affidavit. Even from that affidavit also it is not possible to find out the date. Learned advocate Mr. Chhatrapati appearing for respondent No.2 apprises the Court that according to the information available to him, the application was filed on 7.12.2006. Learned advocate submitted that the affidavit which is produced along with that application at page 57 in the present petition is not a complete one, and only on the basis of the 2nd page of that affidavit the date is given. 4. The Misc. Petition was filed praying that: "(a) Allow the present miscellaneous petition of the Petitioner and take on record the registration certificate for the Petitioner's trade mark CYMBALTA or in the alternative appoint a date for hearing the miscellaneous petition; (b) Pass any other order(s)/direction(s) as this Hon'ble Board may think fit in the facts ad circumstances of the present case." In paragraph 1 of the Misc. Petition it is stated that 'the present petition is being filed to bring on record the registration of the Petitioner's trade mark CYMBALTA during the pendency of the present proceedings'. In paragraph 2 it is stated that "In paragraph 39 of the petition it has been mentioned that the Petitioner has applied for registration of the trade mark CYMBALTA in India being application No.927557 in Class 5 in relation to pharmaceutical and medicinal preparations used for the treatment of diseases and disorders of the central nervous system. In paragraph 2 it is stated that "In paragraph 39 of the petition it has been mentioned that the Petitioner has applied for registration of the trade mark CYMBALTA in India being application No.927557 in Class 5 in relation to pharmaceutical and medicinal preparations used for the treatment of diseases and disorders of the central nervous system. It has also been mentioned in the said paragraph that the said application is pending registration. (Emphasis supplied) In paragraph 3 it is stated that 'during the pendency of the present proceedings the Petitioner has received the registration certificate for the trade mark CYMBALTA issued by the Registrar of Trade Marks. A copy of the registration certificate is annexed hereto and marked as Annexure "A". (Emphasis supplied) 5. The Misc. Petition was objected by the present petitioner before the IPAB. The IPAB in its order at page 26, in paragraph 6, has observed that: "6. The learned senior counsel for the respondent argued that the Miscellaneous Petition filed by the applicant is not maintainable since there is no pleading to the effect that the applicant's mark in question viz., CYMBALTA was pending for issuance of the registration certificate at the time of filing of rectification application and now the applicant's registered trade mark CYMBALTA cannot be taken on record." (Emphasis supplied) 6. This very aspect is referred to by the IPAB in paragraph 9 of its order which reads as under: "9. We have gone through the record and it is found that in paragraph 39 of the original rectification application, it is mentioned that in India that the Petitioner has applied for registration of the trade mark CYMBALTA, details of which are as under: Trade Mark Number Cls. Date Goods CYMBALTA 927557 5 26.05.2000 Pharmaceutical and Medicinal preparations used for the treatment of diseases and disorders of the central nervous system. The said application is pending registration of the Registrar of Trade Marks". Thus, the ground on which the Misc. Petition was opposed was found to be not available to the present petition in view of contents of paragraph 39 of the ORA. This Court also perused the contents of paragraph 39, at pages 48 and 49, as the application is produced on record of this petition. 7. Learned advocate Mr. Thus, the ground on which the Misc. Petition was opposed was found to be not available to the present petition in view of contents of paragraph 39 of the ORA. This Court also perused the contents of paragraph 39, at pages 48 and 49, as the application is produced on record of this petition. 7. Learned advocate Mr. Shah for the petitioner vehemently submitted that in view of Section 92 (2) of the Trade Marks Act, 1999, hereinafter referred to as the 'said Act', IPAB could not have entertained the Misc. Petition and could not have passed the order impugned. He invited attention of this Court to ground (n) at page 15 and also to ground (t) at page 16 and the Rules – Intellectual Property Appellate Board Procedure Rules, 2003, hereinafter referred to as the 'said Rules'. Learned advocate for the petitioner vehemently submitted that as per sub-rule (1) of Rule 8, every application shall be in triplicate in paper-book form and all evidences shall be in the form of affidavits, if any. The learned advocate also submitted that Rule 12 of the said Rules provides as under: "Rule 12- Exhibits: Where there are exhibits to affidavits, a copy each of such exhibits shall be sent to the other party. The originals shall be left in the Appellate Board for inspection of the other party. These shall be produced at the hearing unless the Appellate Board otherwise directs". 8. Learned advocate for the petitioner submitted that the decisions of the Hon'ble the Apex Court which are relied upon by the IPAB, in the case of Pankaja and another v. Yellappa (Dead) by LRS and others, reported in (2004) 6 SCC 415 and in the case of Andhra Bank v. ABN AMRO Bank N.V. And others, reported in (2007) 6 SCC 167 , are not applicable to the facts of the Misc. Petition because the same are applicable to the amendment application and according to him the Misc. Petition was not filed seeking amendment to the rectification application. 9. The learned advocate for the petitioner vehemently submitted that as according to him no amendment application could have been filed to the rectification application hence the present Misc. Petition is nothing but a 'back-door entry' for respondent No.2 herein. He submitted that respondent No.2 tried to achieve something by filing the Misc. 9. The learned advocate for the petitioner vehemently submitted that as according to him no amendment application could have been filed to the rectification application hence the present Misc. Petition is nothing but a 'back-door entry' for respondent No.2 herein. He submitted that respondent No.2 tried to achieve something by filing the Misc. Application which respondent No.2 could not have achieved by filing amendment application and therefore the order of I.P.A.B is required to be quashed and set aside and heavy cost is required to be awarded to the petitioner because the petitioner is dragged by respondent No.2 herein to this Court, and has made it to file this petition before this Court. 10. The Court having gone into the provisions of Section 92 (2), sub-rule (1) of Rule 8, Rule 12 and the aforesaid decisions of the Hon'ble the Apex Court finds that the I.P.A.B has not committed any error in entertaining and allowing the Misc. Petition filed by respondent No.2 herein. 11. The petitioner is out to see that respondent No.2 is 'non-suited' by any means. On one hand the petitioner says that there cannot be an amendment application to ORA and on the other hand it says that 'Misc. Petition' cannot be filed to bring this fact on record. The Court is at loss to understand that in that situation how a party can bring subsequent development on the record. It is not in dispute that when the ORA was filed the application for registration of trade mark CYMBALTA was pending. It is not in dispute that the applicant's (respondent No.2 herein) trade mark CYMBALTA received registration during the pendency of ORA. If this fact is sought to be brought on record, what is the prejudice caused to the present petitioner is not successfully brought home by the learned advocate for the petitioner. Only because the petitioner is able to afford to come to this Court the Court is not bound to entertain its petition and accept its submissions. 12. Learned advocate for the petitioner also submitted that ORA could have been gone on even without bringing the fact that the registration is granted in favour of respondent No.2 herein. The Court is again at loss to understand as to what prejudice is caused to the petitioner if the factum of registration having been granted to respondent No.2 is brought on record before the I.P.A.B. 13. The Court is again at loss to understand as to what prejudice is caused to the petitioner if the factum of registration having been granted to respondent No.2 is brought on record before the I.P.A.B. 13. It is not the case of the petitioner that respondent No.2 has tried to bring something on record which is not factually correct. It is also not the case of the petitioner that respondent No.2 has tried to bring on record something which was available with it at the time of filing ORA. If that is not so then if some development has taken place during the pendency of ORA and if it is sought to be brought on record of the applicant's (respondent No.2 herein) ORA, this Court finds no reason for which the IPAB could have disallowed the Misc. Petition. 14. In view of the aforesaid observations, this petition is found without any substance and it is found to be a frivolous petition. Hence the petition is dismissed with cost of Rs. 25,000/- The cost, as and when deposited, shall be paid to the Legal Aid. Notice is discharged. Petition dismissed.