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2. This report was given by the Stamp Reporter on 12th August, 1991 and this appeal came up for hearing before this Court for admission on 22nd August, 1991. When the attention of learned counsel appearing on behalf of the appellant was drawn with regard to the maintainability of the appeal in terms of the report of the Stamp Reporter, this Court was informed that the O.S. Suit No. 81/91 was initially valued at Rs. 15,500/-only and that on 10th August, 1991 the plaintiff/ appellant filed a petition under O. 6, R. 17 of the Code of Civil Procedure praying for amendment of plaint valuation and on the basis of such a petition, the petition was allowed to be amended and the value of the suit was allowed to be enhanced at Rupees l,00,000/- only.

4. Mr. Sidhartha Sankar Roy appearing with Mukul Prokash Banerjee submitted that this appeal is maintainable in view of the fact that the valuation of the suit was amended on the basis of the petition under 0.6, R. 17 of the Code of Civil Procedure on 10th August, 1991 and such an amendment would be effective or would relate back from the date of the institution of the suit and accordingly, it must be held that even though on 8th August, 1991, the suit was valued at Rs. 15,500/-because of such amendment made on 10th August, 1991, the suit should be deemed to have been valued at Rs. 1,00,000/ - at the date of institution of the suit as well as at the date when the appeal was presented. It was submitted by Mr. Roy that true, on the date when the appeal was presented, this Court had no jurisdiction to entertain the appeal, but because of the amendment of the valuation which should refer back to the date of the situation of the suit. This appeal which was invalid at the time when it was filed, had become valid and it was maintainable because of subsequent event which is validated the filing of the appeal. It was submitted that the right to prefer an appeal is substantive right and this substantive right cannot be allowed to be defeated on technical grounds inasmuch as, it was submitted that at this stage, if this Court holds that this appeal is not maintainable, inasmuch as on 8th August, 1991 this Court had no jurisdiction because of the valuation of the appeal and the appeal cannot also be filed now before the District Judge in view of the fact that the valuation of the suit now stands at Rs. 1,00,000/- and the District Judge had no jurisdiction to entertain an appeal, the value of which, is Rupees 1,00,000/-, inasmuch as, in view of the provisions of S. 21 of the Bengal Agra and Assam Civil Courts Act, 1887, this appeal is maintainable before this Court and this Court is only competent to deal and dispose of such an appeal.

14. Accordingly, the Special Bench of this Court held that because of the retrospective effect given by two decisions of this Court and in view of the provisions of S. 5 of the said Act, the said amendment with regard to the valuation conferring jurisdiction, regarding right of appeal could be retrospective operation. An appeal to the District Judge was competent and maintainable. This was not position before us. Here, there is no question of amending law prospectively or retrospectively. Admittedly, the suit was maintainable before the Court below and when the suit was filed, the valuation was Us. 15.500/- and at a point of time, when the appeal was presented before this Court, the valuation was also Rs. 15,500/-. But two days later the valuation was amended and it was made on Rupees 1,00,000,'-. At the time when the appeal was presented, this Court had no jurisdiction. But because of amendment in the valuation made on 10th August, 1991, an appeal could be entertained if presented on or after 10th August, 1991. It is firmly established principle that the right of appeals is a statutory right. It is not in itself a necessary part of procedure in an action but it is the right of entering a superior Court and invoking its aid and interposition to redress the error of the Court below and the appeal strictly so-called is one in which the question is whether order of the Court from which the appeal is brought was right on the materials which that Court had before it. A right of appeal where it exists, is a matter of substance and not of procedure. (See Colonial Sugar Refining Co. v. Irving (1905) AC 369, Newman v. Klausner (1#22) 1 KB 228.

20. We are of the view that on 8th August, 1991 this Court had no jurisdiction to entertain this appeal and by subsequent amendment of the valuation, an appeal which was invalid, could not be validated. But at the same time, the right of appeal of the appellant which has been expressly conferred by the statute, could not be made nugatory in the facts and circumstances of the case. At this stage, in view of the amendment of valuation, the appeal could not lie before the District Judge and appeal could only He before this Court alone. Accordingly, we are constrained to take this view in view of the fact that we cannot deny the appellant's right of appeal which has been conferred by the statute in the facts and circumstances of the case.